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RICO Act, Proposed Class Action against the Church - it is filed

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6 hours ago, Amulek said:

If there is one thing I have learned from reading legal blogs over the years, it is this: It's never RICO!

Well, as Ken White explains (warning: contains vulgarity), not literally never, but pretty much never.

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Wow. I'm only an abstract imaginary foil written to sound like an idiot and even I know that's really stupid.

That is the funniest thing I have read for awhile. Great link. 

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I think the point of filing what seem like frivolous, even stupid lawsuits is to push the envelope of what the courts will allow to be litigated. Fifty years ago, who would have thought that class-action suits against tobacco companies, never mind suits asserting a constitutional right to same-sex marriage, would produce the results they have done? I never underestimate what activist courts are capable of.

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Posted (edited)
53 minutes ago, esodije said:

I think the point of filing what seem like frivolous, even stupid lawsuits is to push the envelope of what the courts will allow to be litigated.

Rule 11 of the Federal Rules of Civil Procedure govern "sanctionable" (punishable) conduct by lawyers when they misuse the litigation process.  When Ms. Burningham signed the complaint, she represented to the Court that "the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law."  Fed. R. Civ. P. 11(b)(2).  In other words, in filing the complaint she was representing to the court that it (the complaint) is not frivolous.

The problem here is that the lawsuit plows no new ground.  It does not introduce any changed or novel circumstances.  Instead, the claims in it are plainly and squarely barred by the Ecclesiastical Abstention Doctrine.  That is the law of the land, and it is deeply rooted in constitutional jurisprudence pertaining to Free Exercise, Freedom of Association, and other seminal rights and protections.  Ms. Burningham's complaint appears to have exactly nothing to say about an "argument for extending, modifying, or reversing existing law or for establishing new law."  That being the case, Ms. Burningham may well have violated Rule 11 by filing what she knew to be a frivolous lawsuit.

That's my take, anyway.

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Fifty years ago, who would have thought that class-action suits against tobacco companies, never mind suits asserting a constitutional right to same-sex marriage, would produce the results they have done? I never underestimate what activist courts are capable of.

I think Ms. Burningham is pretty much all alone here.  There are no advocacy groups, no social media campaigns, no well-funded lobbying and polling efforts (all of which were present and in force in anti-tobacco and SSM litigation).  It's just her and her quixotic effort to use the Courts to attack a religion she dislikes.  And what's worse, she drafted the complaint in such a way to make her antipathy toward the Church glaringly obvious.

As noted previously, the judge in the Tom Phillips case concluded: "I am satisfied that the process of the court is being manipulated to provide a high-profile forum to attack the religious beliefs of others." 

IMO, Ms. Burningham's complaint makes it rather easy for the federal judge in Salt Lake to come to a substantively similar conclusion.  Ms. Burningham is manipulating the process of the court to provide a high-profile forum to attach the religious beliefs of others.

Thanks,

-Smac

Edited by smac97
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1 hour ago, esodije said:

I think the point of filing what seem like frivolous, even stupid lawsuits is to push the envelope of what the courts will allow to be litigated. Fifty years ago, who would have thought that class-action suits against tobacco companies, never mind suits asserting a constitutional right to same-sex marriage, would produce the results they have done? I never underestimate what activist courts are capable of.

No. It is for the press coverage.

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14 hours ago, ksfisher said:

So why would a lawyer with so much experience file a lawsuit that is so defective?  Is the idea to actually win the suit, or perhaps something a bit more Fabian?

Because she is an objectively terrible lawyer. 

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On 8/5/2019 at 11:29 PM, smac97 said:

Preliminary thoughts:

1. The extensive references to the "Mormon Corporate Empire" are not going to go over well.  Federal judges like litigants to play it straight, particularly when they are represented by counsel.

2. The factual allegations seem generally accurate until paragraph 37, which then veers into allegations about Church teachings which are "false."  The truth or falsity of religious doctrines is a question that is virtually never addressed by the civil courts.  Civil courts are simply not interested in being a forum for people to argue about religious claims.  It's called the "Ecclesiastical Abstention Doctrine."

3. Paragraph 38 starts a long diatribe about the Correlation Committee and it's purported "censorship" proclivities.  Oh, brother.

4. Paragraph 40 claims that members "are constantly reminded through the Empire’s {there's that word again!} various communication methods to avoid reading anything other than correlated material concerning Mormon history."  Well no, that's factually not correct.  But it's also irrelevant to the court.

5. Paragraph 43 claims that "'Lying for the Lord' is a phrase that has been used by former CES employees to describe the attitude of some CES employee administrators whereby employee instructors of young students have been told by their superiors in CES management and even apostles in the Quorum, to avoid discussion of controversial topics, because some things which are true are not very useful."  This is dumb.

6. Paragraph 44: "High-level employees in the CES have even suggested that disobedience to the edict to lie about Mormon history could result in the loss of an inferior’s employment."  Oh, brother.

7. Paragraph 49 posits that this lawsuit is based generally on a theory of "fraud."  "GADDY brings this Class Action Complaint and Demand for Jury Trial (Complaint) against COP to obtain damages for herself and similarly situated persons injured by longstanding false statements of material fact and factual misrepresentations critical to the historical foundation of Mormonism. Said false statements and misrepresentations of historical fact have been and continue to constitute a fraudulent scheme perpetrated for generations by the COP, through its employees and agents upon unwitting Mormons, as well as potential converts to Mormonism."

Well, good luck.  Fed. R. Civ. P. 9(b) requires that complaints predicated on fraud must be pleaded "with particularity."  So far I'm not seeing much in the way of particulars.

8. Paragraph 56: "Mormonism considers itself Christian, though many of its doctrines are foreign to basic Christian beliefs."

Oi!  The attorney who wrote this is seriously asking a federal judge to adjudicate what constitutes "basic Christian beliefs?"  

9. Paragraph 62: "Mormonism’s foundational facts, as taught by the COP, are that after Jesus Christ was crucified, priesthood authority essential to the true gospel was taken from the Earth..."  The subsequent paragraphs go into the Church's narrative about Joseph Smith, the First Vision, the Angel Moroni, etc.  Again, the attorney who wrote this is seriously asking a federal judge to render factual findings about Joseph Smith's theophanies in the early 19th century?

10. Things get pretty stupid in paragraph 65: "Neither Mormon historical scholars nor other academics have found evidence to support the orthodox version of Smith’s first vision, i.e. the official version."

What, pray tell, would the attorney expect the Church to produce as "evidence to support" the Church's narrative?  How would a judge in 2019 hope to be able to ascertain and evaluate competent, probative, and admissible "evidence" about whether Joseph Smith saw God the Father and Jesus Christ, or not?

Paragraph 69 brings it home: "COP has always known, or should have known, that its official version of the first vision is false."  Really?  How is it false?  What "evidence" is there for the judge to evaluate on this issue?  Is this "evidence" competent, probative, and admissible?  And even assuming it is, the underlying question (the veracity of Joseph Smith's claimed theophanies) are about as firmly rooted in the "Ecclesiastical Abstention Doctrine" as you can get.  The attorney may as well as the judge to adjudicate the visions of Paul, or the resurrection of Jesus.  Not gonna happen.

The attorney harps on the Church defrauding members by withholding the 1832 account of the First Vision.  He's a bit late to the game here, as the "Gospel Topics" essay, "First Vision Accounts" specifically references that account, and provides a link to the complete text.

11. Paragraph 74 is actually kind of funny: "Young Mormons like GADDY were never taught the truth, i.e., that Smith’s first vision was a typical Christian theophany, as indicated in his 1832 handwritten account where Smith sought the Lord, who appeared and granted him forgiveness for his sins."  Here the attorney is conceding the factual reality of the Lord appearing to Joseph Smith.  And yet he wants to claim that the Church committed "fraud" by not specifically using the 1832 account in missionary lessons and such.  Weird.

12. Paragraph 78 quotes the older introduction in the Book of Mormon which describes the Lamanites as "the principal ancestors of the American Indians."  Again, the attorney is behind the times a bit here.

13. Paragraph 81 alleges fraud based on paintings in visitors' centers.  No joke.

14. Paragraph 84: "The truth is that the Book of Mormon was dictated by Smith while he peered at a stone in a hat. This manner of Book of Mormon manuscript creation may have been a divination or a reading from some document buried inside the hat, perhaps dictation by inspiration, or some combination thereof, but it does not support the claim that Smith translated (in any ordinary sense of the word) the Book of Mormon directly from gold plates..."

Oh, boy.  This is *exactly* the sort of thing judges do not want to see in their courtroom.  The attorney starts this sentence with "The truth is..."  Well, the Court is not particularly interested in adjudicating whether religious claims are "true."  These are left to individuals to accept, or not.  The attorney, in order to prevail on a fraud claim, will need to marshal evidence as to whether God inspired Joseph Smith during the translation process.  Good luck with that.

15. Paragraph 86 quotes a newspaper article from 1830 as competent evidence of how Joseph Smith translated the Book of Mormon.  Seriously.

16. Paragraph 97 asserts that "The Book of Abraham, purportedly written by the Hebrew prophet and translated by Smith, has been proven a fraud by Egyptologists," and that "In 1966, the papyri from which the Book of Abraham was translated, and which was believed to have been lost in the Great Chicago Fire, was rediscovered."  Again, the attorney is behind the times.  

17. Paragraphs 102-121 have a laundry list of "misrepresentations."  Perhaps culled from the CES Letter?  Pretty lazy writing here.

18. Subsequent paragraphs go through the personal life of the named plaintiff.  Lots of emotional rhetoric.  Poor form for an experienced attorney.

19. The causes of action cited are:

  • "Common Law Fraud";
  • "Fraud in the Inducement to Enter into an Oral Contract";
  • "Breach of Equitably Imposed Fiduciary Duties";
  • "Fraudulent Concealment";
  • "Civil RICO"; and
  • "Intentional Infliction of Emotional Distress."

20. The attorney, Kay Burningham, is the author of "An American Fraud: One Lawyer's Case Against Mormonism."  So she has an axe to grind.

I think the Church's attorneys will not spend much (if any) time on the Complaint's structural defects (failure to properly plead fraud-based allegations), and will instead file a Motion to Dismiss based on the Ecclesiastical Abstention Doctrine.  And I think such a motion will be granted.

I sure hope the attorney did not charge her client for preparing this complaint, because A) it looks like it is the result of considerable time and effort, and B) it is going to fail to get out of the gate.

Thanks,

-Smac

have to laugh at conceding to the factual reality of the first vision

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15 hours ago, The Nehor said:

Amazing. After about the third amended complaint wouldn’t you realize either your case or your lawyer was useless?

People being scammed rarely figure it out in a timely manner.

I would think it might make a good malpractice suit though

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13 hours ago, topcougar said:

Kay Burningham has been working on this for 10 years. This complaint is a summary of her 2011 book.  Well written, but not likely to survive. Her goal is probably not to win in court but to attract publicity. 

That's a pretty poor showing for ten years work

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7 hours ago, smac97 said:

I'm sure this will be very persuasive to a federal judge who has spent years having Latter-day Saint lawyers appear before him/her with extensive legal and factual arguments and reasoning that are excellent evidence of their ability to "critically think."

🤨

-Smac

Filed in salt lake, what are the odds that the Judge is likewise A member of the Church?

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7 hours ago, Avatar4321 said:

Filed in salt lake, what are the odds that the Judge is likewise A member of the Church?

It is a federal case if I understand right. Not sure. How often are federal appointees from the local area?  I have no idea if they pick them based on where they live or focus more on who they want. If the latter probably not really good. In any case I doubt it will matter. I have only been to court consistently for volunteer work but one thing I learned is almost all judges hate frivolous cases and motions and get testy with idiots who try crap like that. Not a guarantee but I would put money on this getting laughed at.

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On 8/6/2019 at 8:55 AM, Stargazer said:

Another lawyer-enrichment action.

Maybe I should have gone to law school instead of learning computer science.

Never too late for law school, and with a computer science background that could handy.

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Part of the fraud complaint is that the church has supported a version of the first vision and translation of the plates which is different than some accounts of the same events.  Under this logic it seems the original apostles and Paul could be sued for promulgating different accounts of the resurrection of Jesus.  Certainly civil authorities disputed the fact of the resurrection. They early Christians ( and Paul) were called to called to account before civil authorities  for preaching false doctrines.  A private lawsuit against the free exercise of sincerely held beliefs is an attempt to limit free exercise - albeit by private action instead of government.  This is why the long standing case law has  privilege from being sued for religious beliefs. 

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8 hours ago, Avatar4321 said:

Filed in salt lake, what are the odds that the Judge is likewise A member of the Church?

Does it matter? Can a member of the Church be trusted to be fair? Can an exmember of the Church be trusted to be fair? I think the answer must the same for both. If neither can be trusted, then should all cases connected to the Church or members of the Church be outsource to a far away Federal District?

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This is in 2013, she mentions her assistant is a true believer, humm. 

 

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8 minutes ago, Tacenda said:

This is in 2013, she mentions her assistant is a true believer, humm. 

 

We really do not need an RSS feed from r/exmormon. I think you would be a lot happier in general if you stopped going there.

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37 minutes ago, The Nehor said:

We really do not need an RSS feed from r/exmormon. I think you would be a lot happier in general if you stopped going there.

Leave me out of it, I think this is just adding to the thread, we are talking about this woman aren't we? We can get a gist as to how she thinks she would win the case aren't we?

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42 minutes ago, Tacenda said:

Leave me out of it, I think this is just adding to the thread, we are talking about this woman aren't we? We can get a gist as to how she thinks she would win the case aren't we?

This is the second time in the last few days you have reposted only a day old stuff from that feed.

And no, her case is so stupid that any reasoning for how she would win is likely to diminish the IQ of anyone listening to her reasoning. The video is also six years old so surely her argument has evolved. (Spoilers: Yeah, probably not)

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On 8/5/2019 at 9:29 PM, smac97 said:

Oi!  The attorney who wrote this is seriously asking a federal judge to adjudicate what constitutes "basic Christian beliefs?"  .

 

For some reason, I imagine the plaintiff hoping for something like the final scene of "Miracle on 34th Street", where she proves Santa Claus exists with a parade of mailmen.

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8 minutes ago, cinepro said:

For some reason, I imagine the plaintiff hoping for something like the final scene of "Miracle on 34th Street", where she proves Santa Claus exists with a parade of mailmen.

I am hoping in the middle of her presenting her case Moroni appears and strikes her dead, announces she was wrong, and leaves.

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42 minutes ago, The Nehor said:

This is the second time in the last few days you have reposted only a day old stuff from that feed.

And no, her case is so stupid that any reasoning for how she would win is likely to diminish the IQ of anyone listening to her reasoning. The video is also six years old so surely her argument has evolved. (Spoilers: Yeah, probably not)

If it's bothersome that much, just delete it from your post and I'll delete from mine. 

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On 8/6/2019 at 11:52 AM, JAHS said:

Right! good luck with trying to get back donations voluntarily given to a charitable organization. 🙄

 

Relevant case...?

Jury Awards $1.5 Million to Expelled Sect Member

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(1986)  A Westlake Village man was awarded more than $1.5 million Wednesday for harm done to him while he was an architect for the Calabasas-based Church Universal and Triumphant.

“I was a victim of this cult for six years,” Gregory Mull, 64, said after a Los Angeles Superior Court jury announced its verdict against the sect and its leader, 46-year-old Elizabeth Clare Prophet, known to her followers as Guru Ma.

The jury deliberated for more than 40 hours before awarding the former church member $1,563,300. The award specified $521,100 in compensatory damages, plus $521,100 in punitive damages from the church, a nonprofit corporation, and another $521,100 in punitive damages from Prophet.

 

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Posted (edited)

It sounds at least part of that was he expected to get paid for professional work and wasn’t. 

More detail on the case here, including links to a book by the church leader’s daughter (who is a professor on religious movements and cults) and trial documents:

http://www.eprophet.info/blog-2/2018/10/14/is-brainwashing-a-thing

short lecture here: https://m.youtube.com/watch?v=az6xPYCZTqo

 

Edited by Calm
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8 minutes ago, cinepro said:

Sort of, but there are a lot of differences. In this case the church started it by suing him first for a “loan” after expelling him. While I sympathize with the guy I have a suspicion this thing will die on appeal. While I find the church detestable I do agree with them that the jury was probably influenced by his crippled status. I did laugh at their prophet chanting their scripture as part of her testimony. I am surprised the judge allowed all this. I also laughed at the guy initially asking for a quarter of a billion in damages. Sure, buddy.

Weird situation.

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Posted (edited)
34 minutes ago, The Nehor said:

Sort of, but there are a lot of differences. In this case the church started it by suing him first for a “loan” after expelling him. While I sympathize with the guy I have a suspicion this thing will die on appeal. While I find the church detestable I do agree with them that the jury was probably influenced by his crippled status. I did laugh at their prophet chanting their scripture as part of her testimony. I am surprised the judge allowed all this. I also laughed at the guy initially asking for a quarter of a billion in damages. Sure, buddy.

Weird situation.

It was in 86. 

The daughter believes the case wouldn’t fly now, in part because of false claims made (that the Church was planning on terrorist acts for the sake of the planet was one) and science hasn’t really substantiated claims on coercive persuasion/brainwashing. 

Looking to see if the appeal went through. 

https://www.google.com/amp/s/www.latimes.com/archives/la-xpm-1986-07-22-me-30719-story.html%3f_amp=true

no info on appeal, Mull died a few months later

Edited by Calm

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1 hour ago, The Nehor said:

I am hoping in the middle of her presenting her case Moroni appears and strikes her dead, announces she was wrong, and leaves.

Let's see...Smac created a sizable derail with much outrage yesterday when a critic tweeted a "wish" for two members of the First Presidency to die in a car wreck...and here we have a "wish" for the death (albeit in an unlikely manner) of the Plaintiff in this stupid case by none other than the resident smart-a** defender and it goes unnoticed.  Interesting.

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