Update on Huntsman Lawsuit: Ninth Circuit Reverses Trial Court

smac97 · September 20, 2024

42 minutes ago, Analytics said:

Yes. “Promises of repayment of retirement funds” is a secular thing in Harmston. That is like the secular accusations in this case (i.e. breach of fiduciary duty, fraudulent inducement, fraudulent concealment, fraudulent misrepresentation, and unjust enrichment) in that it is secular in nature.

No, no. “Promises of repayment of retirement funds” is a secular factual "thing in Harmston."

You previously said: "{T}he actual Consolidated Class Action Complaint is about secular things like promises of repayment of retirement funds and is not about religious things like meeting Jesus face to face." What are these "secular things" that the Church said to the MDL plaintiffs to induce them to pay tithes?

42 minutes ago, Analytics said:

Quote

What "secular things" (which, according to you, were "like promises of repayment of retirement funds") did the Church promise to the MDL plaintiffs in exchange for tithes?

I never said the Church promised the MDL plaintiffs “secular things” in exchange for tithes.

Your evasiveness is wearing thin.

You previously said: "{T}he actual Consolidated Class Action Complaint is about secular things like promises of repayment of retirement funds." What are these "secular things" that the Church said to the MDL plaintiffs to induce them to pay tithes?

42 minutes ago, Analytics said:

What I said is that the concepts of fiduciary duty, fraudulent inducement, fraudulent concealment, fraudulent misrepresentation, and unjust enrichment are secular in nature.

You previously said: "{T}he actual Consolidated Class Action Complaint is about secular things like promises of repayment of retirement funds." What are these "secular things" that the Church said to the MDL plaintiffs to induce them to pay tithes?

42 minutes ago, Analytics said:

The point is that you need to consider their arguments in context.

We need to consider the lawsuit and how well-settled principles of law will likely apply to it.

42 minutes ago, Analytics said:

If you parse out the phrase “in manners antithetical to the purported mission of” the Church, it sounds like they are criticizing how they spend money.

This case is about money, and about what the Church said about money and how it spent money. That is all. It's not about a breach of contract, or a car accident, or anything else. The MDL plaintiffs only have standing to sue to the Church because they paid tithes. And their lawsuit is about money, and about what the Church said about money and how it spent money.

42 minutes ago, Analytics said:

But if you read that phrase in the context of the whole sentence, you see it’s really just one little thing intended to support their actual claims, which are about breach of fiduciary duty,

The alleged "breach" being about how the Church spent tithes and other sources of revenue.

42 minutes ago, Analytics said:

fraudulent inducement,

The alleged inducement was for the MDL plaintiffs to continue to contribute tithes to the Church.

42 minutes ago, Analytics said:

fraudulent concealment,

The alleged concealment being about how the Church spent tithes and other sources of revenue.

42 minutes ago, Analytics said:

fraudulent misrepresentation,

The alleged misrepresentation being about how the Church spent tithes and other sources of revenue.

42 minutes ago, Analytics said:

and unjust enrichment.

The alleged unjust enrichment being the MDL plaintiffs' tithes to the Church.

42 minutes ago, Analytics said:

How does this amount to fraud? Personally, I don’t know if it does or not. My only point here is that this is their actual claim.

You seem to not apprehend the difference between questions of fact and questions of law.

42 minutes ago, Analytics said:

But I can’t help but wonder. If their actual claims are so weak, why go to such great lengths to insist that their real claims are something else?

I don't know what you are saying here. Their actual claims are "weak" because they have very little chance of surviving dismissal under Rule 12. It makes sense, then, that the MDL plaintiffs would go to great lengths to re-characterize their claims to avoid this outcome.

Thanks,

-Smac

smac97 · September 20, 2024

On 9/19/2024 at 5:15 PM, Analytics said:

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You previously said: "{T}he actual Consolidated Class Action Complaint is about secular things like promises of repayment of retirement funds and is not about religious things like meeting Jesus face to face."

What "secular things" are you referencing here?

I'm referring to the five Causes of Action listed in the complaint, starting in paragraph 146.

Those are legal theories of liability. I am asking you to explain factual underpinnings, not legal theories. Again from Harmston:

Quote

Plaintiffs are alleging a variety of causes of action arising from the same set of decidedly secular facts. Both of the Plaintiffs assert that they gave money to the Church in exchange for promises of future earthly benefits. Hancock alleges that she was promised land and support; Stewart alleges that she was promised repayment of her retirement funds including the costs and penalties of early withdrawal.

What "decidedly secular facts" are in view here? What is it that the Church said or did that fraudulently induced the MDL plaintiffs to contribute tithes to the Church (or to continue to do so)?

On 9/19/2024 at 5:15 PM, Analytics said:

Quote

What "earthly benefits" (the court's wording) and/or "secular things" (your wording) did the Church promise to the MDL plaintiffs in exchange for tithes?

None. The case isn’t about exchanging things for tithes.

"Fraud" is a claim that X made a false statement to Y in order to induce Y to act.

Here, the MDL plaintiffs (Y) are alleging that the Church (X) said or did something that induced them to pay tithes or continue to pay tithes.

What did the Church say or do to induce the MDL plaintiffs to pay tithes or continue to pay tithes?

When did the Church say or do this?

Where did the Church say or do this?

On 9/19/2024 at 5:15 PM, Analytics said:

The case is about the secular concepts of breach of fiduciary duty,

A supposed breach about money.

This is a legal concept, not a factual averment.

And the law does not impose a fiduciary duty in this context.

On 9/19/2024 at 5:15 PM, Analytics said:

fraudulent inducement ... fraudulent misrepresentation,

These are the same thing.

And the supposed fraud is about money.

Fraud claims center on inducements to act. Here, the MDL plaintiffs were purportedly "induced" by the Church's false representations to pay tithes or continue to pay tithes. What were these false representations? Who made them? When? Where?

On 9/19/2024 at 5:15 PM, Analytics said:

fraudulent concealment,

The supposed "concealment" being about the Church's finances, IOW, money.

A prima facie element of fraudulent concealment is a duty to disclose.

What "duty" does the Church have?

Where in the law is such a duty imposed?

And this duty is to disclose what?

And disclose it to whom?

And what evidence exists showing that this information was not disclosed?

On 9/19/2024 at 5:15 PM, Analytics said:

and unjust enrichment.

"Enrichment" = money.

Thanks,

-Smac

Edited December 24, 2024 by smac97

smac97 · September 20, 2024

3 hours ago, Analytics said:

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A claim that only arises if "tithes" are re-defined.

This is an argument you have made over and over and over, and I find it incredibly weak.

Tell that to the Ninth Circuit:

Quote

The district court concluded that no reasonable juror could find that the Church fraudulently misrepresented that no tithing funds would be or were being used to finance the City Creek Mall project.
...
There are two questions before us. First, could a reasonable juror conclude that the Church fraudulently misrepresented that no tithing funds—neither tithing principal nor earnings on tithing principal—would be or were being used to finance the City Creek Mall project?
...
The question before the district court, and before us, is whether a reasonable juror could conclude that the five statements by church officials and in church publications amounted to fraudulent misrepresentation by the Church. See Small, 65 P.3d at 1258. Huntsman contends that a reasonable juror could conclude from the five statements that the Church fraudulently misrepresented that neither tithing principal nor earnings on tithing principal were being or would be used to finance the City Creek Mall project. We agree.

For the reasons that follow, we hold that a reasonable juror could conclude that the Church misrepresented the source of the funds used to finance the City Creek Mall project.

First, church officials and church publications made four unqualified statements that no tithing funds were being or would be used to finance the City Creek Mall project. None of the four statements distinguished between tithing principal and earnings on tithing principal. None of them referred to a “reserve fund” or earnings on “reserve funds.”
...
President Hinckley first stated that “tithing funds” had not been used to acquire, and would not be used to develop, the City Creek Mall. He did not define “tithing funds.” That is, he did not tell his listeners that, in denying that “tithing funds” would be used, he was denying only that tithing principal would be used. President Hinckley then stated that earnings on invested “reserve funds” would be used to develop the project. He did not define “reserve funds.”

President Hinckley could have explained that, as he was using the terms, “reserve funds” were “tithing funds.” If he had said that, his audience would have understood that earnings on “tithing funds” would be used to develop the City Creek Mall project. But President Hinckley did not say that. Instead, having stated that “tithing funds” would not be used to develop the project, President Hinckely then used an entirely different and undefined term, saying that earnings on “reserve funds” would be used.
...
Given this common usage, a reasonable juror could conclude that President Hinckley intended his audience to understand, when he said that no “tithing funds” would be used to fund the City Creek Mall project, that neither tithing funds principal nor earnings on tithing principal would be used.
...
In sum, a reasonable juror could rely on the following evidence to conclude that the Church fraudulently misrepresented that neither tithing principal nor earnings on tithing principal would be or were being used to develop the City Creek Mall project...

Re-defining "tithing" is the entire basis for the Ninth Circuit's reversal of the lower court's decision.

3 hours ago, Analytics said:

I’d be really surprised if the Church’s attorneys make this argument.

You apparently are not reading the briefs very closely. See Doc. 79, pp. 23-26, in which the Church's attorneys discuss this issue at some length.

3 hours ago, Analytics said:

My understanding is that in cases of fraud or misrepresentation, the concept of dishonesty is typically based on how a reasonable person would interpret the actions or statements. Would a reasonable person have been misled or deceived by the conduct?

Well, not quite.

Fraud requires factual falsity. A person cannot commit fraud by making a statement of opinion or taste. Instead, the statement must be factual, and therefore factually false. The subjective assessment of a "reasonable person" receiving the representation is not relevant to this point.

Fraud also requires the intent to deceive (called "scienter"). That is, the purveyor of the false statement must have either known the statement to be false, or else made it "recklessly," knowing that he had "insufficient knowledge upon which to base such a representation." Again, the subjective assessment of a "reasonable person" receiving the representation is not relevant to this point.

Fraud also requires actual "reliance." If the MDL plaintiffs' claims were to proceed, I think this would be difficult to impossible to establish. In any event, they have likely failed to meet the threshold pleading requirement for this one (see Doc. 79, pp. 24-27, which addresses this point at length).

Fraud also requires that the reliance be "reasonable." This is addressed on pp. 28-31.

Fraud also requires that the misrepresentation be "material." This is addressed on pp. 28:

Quote

“Silence, in order to be actionable fraud, must relate to a material matter....” Mitchell v. Christensen, 31 P.3d 572, 574 (Utah 2001). Plaintiffs also do not plead any facts to establish the materiality of the alleged nondisclosures. While they might claim the nondisclosures were material to them, that is irrelevant. “[R]easonableness is not based on the subjective state of mind of the person claiming he was misled, but rather is to be based on an objective test, i.e., what would a reasonable person conclude under these circumstances.” Youngblood v. Auto-Owners Ins., 158 P.3d 1088, 1096 (Utah 2007). Plaintiffs make no attempt to plead what facts are material to a “reasonable person” in deciding whether to give tithes to the Church.

Nor could they. Tithing is not a quid pro quo exchange that can be judged on a secular scale.

The "reasonable person" stuff is, in a Rule 12 context, a very small part of the overall assessment.

3 hours ago, Analytics said:

According to this standard, the court wouldn’t have to use any specific definition of tithing, but rather would evaluate things like, for example, whether Kim Pearson is a reasonable person and whether he was deceived in the same way the plaintiffs claim they were deceived.

Nope. This stuff doesn't really come into play in Rule 12 analysis. And to the extent it does, the MDL plaintiffs have done a poor job of pleading it (see above).

3 hours ago, Analytics said:

Quote

Quote

Those are the specific things they are suing about. They are not suing about “the use of tithing."

Yes, they are.

No, they’re not. I know you wish they were making that argument because then you could evoke the ecclesiastical abstention doctrine, but you wishing that doesn’t make it so.

Roger, do you know what the current name of the lawsuit is?

The normal naming convention is to use the names of the parties ("Conley v. Gibson," for example). But because the federal courts have consolidated these multiple lawsuits into a single one and sent it to Salt Lake to be heard by an Article III judge there (Judge Shelby), the federal courts had to come up with a new name for the lawsuit to put in the caption of the case.

Here is the naming convention they came up with:

And here is the name of the lawsuit as it appears in the plaintiffs' consolidated complaint:

"IN RE: THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS TITHING LITIGATION."

Further, the word "tithe" and its derivatives appear at least 31 times throughout the text of the plaintiffs' complaint.

The term "tithe" and its derivatives appear 64 or so times in Church's Motion to Dismiss (Doc. 79), 27 or so times in EPA's Motion to Dismiss (Doc. 80), and 76 or so times in the Motion to Strike (Doc. 81).

The federal courts are calling the lawsuit "Tithing Litigation."

The plaintiffs refer to tithing dozens of times in their complaint.

The Church and EPA refer to tithing many dozens of times when responding to the plaintiffs' Complaint.

And yet, according to you, the lawsuit is not about tithes.

Thanks,

-Smac

Edited September 20, 2024 by smac97

Analytics · September 20, 2024

14 hours ago, smac97 said:

No, no. “Promises of repayment of retirement funds” is a secular factual "thing in Harmston."

You previously said: "{T}he actual Consolidated Class Action Complaint is about secular things like promises of repayment of retirement funds and is not about religious things like meeting Jesus face to face." What are these "secular things" that the Church said to the MDL plaintiffs to induce them to pay tithes?

Before I engage in another round of smacalytics, I think it’s worth taking a step back and reviewing what we are talking about.

You asked me my opinion on this lawsuit and said you wanted to discuss it. My answer was as follows:

In my view, the accusations made by the plaintiffs are relatively weak, based on the facts and the law as I understand them. If I were the judge I would be inclined to grant the Church’s motions to dismiss; I found quite a bit of what the Church has argued in these motions to be persuasive. But I’d reserve judgement until I heard the other side...

However, I am still not persuaded that the Church autonomy doctrine is relevant here, and I’m still left wondering why they are arguing it. Is it a red herring, or are they arguing that the church autonomy doctrine grants them license to commit what would otherwise be fraud?

14 hours ago, smac97 said:

You previously said: "{T}he actual Consolidated Class Action Complaint is about secular things like promises of repayment of retirement funds." What are these "secular things" that the Church said to the MDL plaintiffs to induce them to pay tithes?

You previously said: "{T}he actual Consolidated Class Action Complaint is about secular things like promises of repayment of retirement funds." What are these "secular things" that the Church said to the MDL plaintiffs to induce them to pay tithes?

The plaintiffs support the Church’s religious, educational, and charitable missions, as articulated by the Church. They rationally believed that by making contributions to the church, the money would be used to support those articulated missions. Instead, the money was funneled elsewhere.

The Church has the right to spend money any way it wants, but it also has the legal and ethical obligation to be honest with donors and potential donors about what they are doing and planning to do with the donations they are soliciting.

The problem is the Church’s alleged dishonesty with donors, not what it decided to do with its money.

I don’t believe the Church autonomy doctrine gives the Church the right to be dishonest with donors about how money will be allocated. Am I wrong about that?

14 hours ago, smac97 said:

We need to consider the lawsuit and how well-settled principles of law will likely apply to it.

Exactly.

14 hours ago, smac97 said:

This case is about money, and about what the Church said about money and how it spent money.

And money is a secular thing, is it not?

The Church has the right to spend its money any way it wants, and I don’t see the plaintiffs disputing this. What they are claiming, however, is that in order to induce members to make contributions, the church lied about how money would be spent. That is the issue.

14 hours ago, smac97 said:

The alleged "breach" being about how the Church spent tithes and other sources of revenue.

No.

It. Is. Not.

The specific claim is that the Church "owed the members of the Class all applicable fiduciary duties, including the duty to fully disclose to them all material facts and information in connection with its disposition of the donations. "(Paragraph 150)

The alleged breach isn’t about how the money was spent. It was how the use of the funds wasn’t fully disclosed.

14 hours ago, smac97 said:

The alleged inducement was for the MDL plaintiffs to continue to contribute tithes to the Church.

Yes. Specifically, it was that "In the course of soliciting donations from Plaintiffs and the Class, Defendant LDS made false representations regarding contemporaneously existing material facts and made promises of future performance with no contemporaneous intent to perform.” (P 158)

14 hours ago, smac97 said:

The alleged concealment being about how the Church spent tithes and other sources of revenue.

" Defendants deliberately concealed from Plaintiffs and other Class members their intention and practices about the donated funds they received.” (P. 170)

Note that the accusation is that they concealed how the funds would be used, not that they don’t have the right to determine how the funds would be used.

14 hours ago, smac97 said:

The alleged misrepresentation being about how the Church spent tithes and other sources of revenue.

Exactly. "LDS made false statements of material fact that tithing funds would only be used for the LDS Church’s published purposes and would not be used for the financing of City Creek Center.” (P 178)

14 hours ago, smac97 said:

The alleged unjust enrichment being the MDL plaintiffs' tithes to the Church.

"Plaintiffs and the Class donated money to Defendants in reliance on those misrepresentations and omissions.” (paragraph 187)

Note that throughout this, they don’t deny the Church the right to believe anything they want doctrinally, and to do anything they want as they run the Church as they see fit. The only thing they are asking is for the Church to be transparent and honest about how the donations they solicit will be used.

That. Is. It.

The Church insists that the church autonomy doctrine applies to this, and I”m asking how. Does the church autonomy doctrine give them the right to be dishonest with the membership regarding how funds will be spent?

14 hours ago, smac97 said:

You seem to not apprehend the difference between questions of fact and questions of law.

If you think I’m incompetent to practice law, then report me to the bar.

I’ll simply note that the plaintiffs said in paragraph 184 that the allegations they describe are factual and made in detail.

14 hours ago, smac97 said:

I don't know what you are saying here. Their actual claims are "weak" because they have very little chance of surviving dismissal under Rule 12.

If that’s true, then why bother evoking the church autonomy doctrine? Why imply that their dishonesty is justifiable under the law because church autonomy gives them license to lie to donors about how money will be spent?

14 hours ago, smac97 said:

Those are legal theories of liability. I am asking you to explain factual underpinnings, not legal theories.

And I’m asking you to get that information from the actual complaint.

"As described in detail in the factual allegations above, Defendants made material misrepresentations and omissions to Plaintiffs and the Class in the course of soliciting and use of donations." (Paragraph 184)

14 hours ago, smac97 said:

Again from Haramston:

What "decidedly secular facts" are in view here?

I would say that everything the church has said and done that would cause an informed member to believe that "the church really doesn't have the chance to put much tithing away in a rainy day fund. Probably not more than would keep the church running for a few months.”

As I understand it, the Church can believe whatever it wants, but when they conceal, lie, and deceive about how money will be spent in order to induce people to donate, they are talking about secular things.

14 hours ago, smac97 said:

Fraud claims center on inducements to act. Here, the MDL plaintiffs were purportedly "induced" by the Church's false representations to pay tithes or continue to pay tithes. What were these false representations? Who made them? When? Where?

The supposed "concealment" being about the Church's finances, IOW, money.

A prima facie element of fraudulent concealment is a duty to disclose.

What "duty" does the Church have?

Where in the law is such a duty imposed?

And this duty is to disclose what?

And disclose it to whom?

And what evidence exists showing that this information was not disclosed?

You are now asking the right questions.

13 hours ago, smac97 said:

Tell that to the Ninth Circuit:

Re-defining "tithing" is the entire basis for the Ninth Circuit's reversal of the lower court's decision.

No it isn’t. The Ninth Circuit didn’t say that they were going to use their judicial authority to redefine the religious doctrine of tithing and then impose their definition on things Church leaders said before the court-ordered definition was imposed. What they said was that a reasonable person standard should be used.

And the fact of the matter is that many faithful Latter-day Saints interpreted the Church’s remarks in the same way the plaintiffs claim they interpreted them.

13 hours ago, smac97 said:

You apparently are not reading the briefs very closely. See Doc. 79, pp. 23-26, in which the Church's attorneys discuss this issue at some length.

That is false. Their attorneys neither say or imply that the plaintiffs theory only works if Judge Shelby radically redefine tithing.

13 hours ago, smac97 said:

Well, not quite.

Fraud requires factual falsity. A person cannot commit fraud by making a statement of opinion or taste. Instead, the statement must be factual, and therefore factually false. The subjective assessment of a "reasonable person" receiving the representation is not relevant to this point.

Fraud also requires the intent to deceive (called "scienter"). That is, the purveyor of the false statement must have either known the statement to be false, or else made it "recklessly," knowing that he had "insufficient knowledge upon which to base such a representation." Again, the subjective assessment of a "reasonable person" receiving the representation is not relevant to this point.

Fraud also requires actual "reliance." If the MDL plaintiffs' claims were to proceed, I think this would be difficult to impossible to establish. In any event, they have likely failed to meet the threshold pleading requirement for this one (see Doc. 79, pp. 24-27, which addresses this point at length).

Fraud also requires that the reliance be "reasonable." This is addressed on pp. 28-31.

Fraud also requires that the misrepresentation be "material." This is addressed on pp. 28:

The "reasonable person" stuff is, in a Rule 12 context, a very small part of the overall assessment.

I congratulate you on asking some relevant questions here. Addressing one of these points, was their intent to deceive? The plaintiffs argue:

"Once the scheme was exposed, Roger Clarke, Ensign Peak’s CEO, conceded that they “tried to be somewhat anonymous” regarding LDS’s investments.46 The purpose of this, he explained, was to conceal the extent of LDS’s reserves from donors. In fact, Roger Clarke further stated the reason for the Church’s silence on its multi-billion dollar fund: “[s]o they neverwanted to be in a position where people felt like, you know, they shouldn’t make a contribution” (paragraph 102)

That looks like intent to me.

13 hours ago, smac97 said:

Roger, do you know what the current name of the lawsuit is?

The normal naming convention is to use the names of the parties ("Conley v. Gibson," for example). But because the federal courts have consolidated these multiple lawsuits into a single one and sent it to Salt Lake to be heard by an Article III judge there (Judge Shelby), the federal courts had to come up with a new name for the lawsuit to put in the caption of the case.

Here is the naming convention they came up with:

And here is the name of the lawsuit as it appears in the plaintiffs' consolidated complaint:

"IN RE: THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS TITHING LITIGATION."

Further, the word "tithe" and its derivatives appear at least 31 times throughout the text of the plaintiffs' complaint.

The term "tithe" and its derivatives appear 64 or so times in Church's Motion to Dismiss (Doc. 79), 27 or so times in EPA's Motion to Dismiss (Doc. 80), and 76 or so times in the Motion to Strike (Doc. 81).

The federal courts are calling the lawsuit "Tithing Litigation."

The plaintiffs refer to tithing dozens of times in their complaint.

The Church and EPA refer to tithing many dozens of times when responding to the plaintiffs' Complaint.

And yet, according to you, the lawsuit is not about tithes.

Thanks,

-Smac

I'm not sure why I should bother talking to you if you aren’t going to read what I said.

Above you said that "according to [me], the lawsuit is not about tithes."

That simply isn’t true.

My specific words were:

[Causes of Action One Through Five] are the specific things they are suing about. They are not suing about “the use of tithing."

Are you really going to argue with me about this? Are you suggesting that they are not suing about Causes of Action One through Five?

Or are you taking offense over a single word? If you want to be pedantic about it, then read what I say as carefully as you want me to read what you say. Note that I said they are not suing over “the use of tithing” and that “of tithing” is a prepositional phrase. The object they are not suing about is “the use”, tithing is in a prepositional phrase clarifying what “use” I am talking about.

How tithing is “used” is not the same thing as how tithing is “lied about.”

In context, the real issue isn’t whether or not the Church was being true to the Church’s doctrine. Rather, it is about whether the Church gave the plaintiffs any reason to believe or even suspect that the Church was using most of its annual income to build up the size of its for-profit business empire. The Church has the right to do this, but it also has the legal and ethical obligation to be honest with donors and potential donors that this is what they are doing and planning to do with the donations they are soliciting.

Edited September 20, 2024 by Analytics

smac97 · September 20, 2024

On 9/20/2024 at 5:53 AM, Analytics said:

Before I engage in another round of smacalytics, I think it’s worth taking a step back and reviewing what we are talking about.

We should be talking about the MDL lawsuit as it exists and how it will be treated by Judge Shelby based on longstanding principles of law.

Instead, you keep veering and meandering into tangents and irrelevancies.

On 9/20/2024 at 5:53 AM, Analytics said:

However, I am still not persuaded that the Church autonomy doctrine is relevant here, and I’m still left wondering why they are arguing it.

Because the people who are arguing it are trained and experienced in the law, and you are not.

Because you are not willing to assess the lawsuit in the real-world framework in which it is pending, and instead you talk about it in ways more agreeable to your neophyte palate.

On 9/20/2024 at 5:53 AM, Analytics said:

Is it a red herring, or are they arguing that the church autonomy doctrine grants them license to commit what would otherwise be fraud?

You keep stacking the deck. Loading the dice. Poisoning the well. Putting the cart before the horse.

Nobody is claiming that the church autonomy doctrine grants them license to commit what would otherwise be fraud. If you tried this schtick once in front of a judge, you would get an annoyed look. If you tried it twice, you would chewed out. If you tried it a third time, you would likely get sanctioned.

And you have tried this many, many times now.

"Fraud" is a legal concept. It has an established framework, prima facie elements, statute of limitations, quantum of evidence, standard of pleading, and so on. Before it can be evaluated in court, it has to get past the bouncer: Rule 12. If the claim can't survive Rule 12 analysis, then whether it amounts to legally-cognizable "fraud" will never be explored.

Legal analysis does not involve just conclusorily skipping to the end and then backtracking through the preceding procedural and evidentiary steps that precede it. The MDL plaintiffs have presented claims of fraud. That's all. They haven't proven these claims, so they are currently just unsubstantiated allegations. The "would otherwise be fraud" schtick is not how Judge Shelby will proceed.

Moreover, whether a claim might eventually be borne out as constituting "fraud" is an interesting discussion, and I have tried to indulge you a bit in exploring it. When I pose questions pertaining to the claim's prima facie elements, you dodge and weave and answer questions with evasions, other questions, etc. So I'm pretty much done with that effort. Instead, I'm going to stick with the MDL lawsuit, which I think will be shown to have failed to competently initiate fraud-based claims against the Church. This failure arises from a variety of defects, violation of the Ecclesiastical Abstention Doctrine being just one of them.

“A complaint alleging fraud should be filed only after a wrong is reasonably believed to have occurred; it should serve to seek redress for a wrong, not to find one.” Shah v. Intermountain Healthcare, Inc., 2013 UT App 261, ¶ 12, 314 P.3d 1079 (quoting Segal v. Gordon, 467 F.2d 602, 607–08 (2d Cir. 1972). The MDL plaintiffs apparently want to use the federal courts to find a fraud claim rather than bring one through the front door. That will not work.

On 9/20/2024 at 5:53 AM, Analytics said:

The plaintiffs support the Church’s religious, educational, and charitable missions, as articulated by the Church. They rationally believed that by making contributions to the church, the money would be used to support those articulated missions. Instead, the money was funneled elsewhere.

Again, you are not paying attention to the MDL lawsuit. The Church's Motion to Dismiss (Doc. 79) addresses this issue in various places. A sampling:

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Some mistakenly believe “charitable” means only helping the poor and needy.7 But the “advancement of religion” is also charity. See Treas. Reg. § 1.501(c)(3)-1(d)(2). Donations spent on day-to-day Church operations, building and maintaining chapels and temples, funding missionary work and funding education, for example, are charity.8 And to support such activities, charities are unquestionably permitted to “accumulate” a reserve fund and manage those funds “as a prudent investor would in light of the purposes of the charity.” Restatement of the Law, Charitable Nonprofit Organizations § 2.04. Indeed, “[a] charity often holds substantial assets that are meant to be invested for the continuing operation of the charity to advance its purposes.” Id. comment a. The Uniform Prudent Management of Institutional Funds Act, adopted by every state except Pennsylvania, expressly authorizes charities to accumulate assets and invest. See Utah Code § 51-8-301(1)(a).

Plaintiffs nevertheless object to the Church investing in “noncharitable activities” and owning as investments “for-profit” businesses. Consol. Compl. ¶¶ 39, 155, 163, 172. But there is nothing improper about this. “Nonprofit does not mean that the organization itself cannot make a profit,” the “essence of the nonprofit test under § 501(c)(3)” is its “prohibition against private inurement.” 1 Religious Organizations and the Law § 8:26 n.4 (2d ed.). “[R]eligious organizations” can “own and operate taxable businesses, either for investment purposes or because the businesses are closely aligned with their religious missions” or both. Id. § 8.27.

Plaintiffs are not the first to object to Church investments. In Stone, a Church member objected to the Church’s investment in a Salt Lake City mall—City Creek’s predecessor—saying (much like Plaintiffs here) that “funds collected by the Church must be used for religious and charitable purposes,” not for investments in for-profit pursuits. Stone, 356 P.2d at 633. The Utah Supreme Court said of course donations must “ultimately be applied to the purposes for which the [Church] exists and for which the funds were donated,” but “it is obvious that all of the funds the Church collects would not be disbursed immediately and directly for such purposes.” Id. at 633-34. “It is but common sense and common knowledge,” the Utah Supreme Court continued, “that there is need for the exercise of management of such funds for the ultimate accomplishment of the purposes stated.” Id. at 634. “How this is to be done to best serve those objectives is for those in charge of the management of the church to decide” and may “entail the keeping of collected funds in savings accounts, bonds, real estate or any type of investment in which, in the judgment of those in charge, best suits that purpose.” Id. Moreover, a donor “has no right to retrieve, control, or direct the manner in which the money so given shall be used simply because he has made such contributions.” Id.9
...
7 The Church spent over $1 billion in both 2022 and 2023 caring for those in need. See Caring for Those in Need 2022 Annual Report at 4; Caring for Those in Need 2023 Annual Report at 14 (So that Plaintiffs’ allegations do not go completely unrefuted, the Church refers in Footnotes 7, 8 and 17 to matters outside the pleadings. The Court can, however, ignore those footnotes as it sees fit.)
8 The Church spends over $1 billion annually on its education system and just announced it would open a medical school at BYU to focus on the needs of Church members in developing countries as part of “the Church’s worldwide humanitarian efforts.” See First Presidency of The Church of Jesus Christ Announces New Medical School for Brigham Young University (July 29, 2024).
9 Utah law governs Plaintiffs’ claims, because Utah has the most significant relationship to the claims. See, e.g., Waddoups v. Amalgamated Sugar, 54 P.3d 1054, 1059 (Utah 2002); see also disc. infra at § IV.A. Plaintiffs appear to agree. See, e.g., Consol. Compl. ¶ 14 (claiming Plaintiffs “are entitled to money damages and injunctive relief under Utah law”).

Either you have not bothered to read the materials I have provided (contrary to your claim that you have), or you have read them and are ignoring the substantive law cited therein. Either way, you keep veering into questions about what you think the law should be, rather than what the law is.

I anticipate that the MDL plaintiffs will respond in similarly irrelevant ways (though they will not be nearly as devoted to navel-gazing philosophizing as you are).

The law says that religious groups can

accumulate a reserve fund and manage those funds,
make investments for the continuing operation of the charity to advance its purposes,
hold and utilize/operate substantial assets, such as “taxable businesses, either for investment purposes or because the businesses are closely aligned with their religious missions” or both,
hold or otherwise use donated funds and not immediately disburse them directly for charitable/religious purposes, and so on.

All of this is, under the law, "common sense and common knowledge."

You are not addressing any of this. You are ignoring these principles of law, and endlessly regurgitating talking points from the MDL plaintiffs. You are doing this to the exclusion of discussing the substantive law.

On 9/20/2024 at 5:53 AM, Analytics said:

And money is a secular thing, is it not?

In the context of the MDL lawsuit, the money under discussion (the Church's tithed and other funds) is not "a secular thing." Donations to a religious institution are a religious thing, the lawful disposition of which is beyond judicial review.

On 9/20/2024 at 5:53 AM, Analytics said:

The Church has the right to spend its money any way it wants, and I don’t see the plaintiffs disputing this. What they are claiming, however, is that in order to induce members to make contributions, the church lied about how money would be spent. That is the issue.

Strange that you cannot point to the "lie." The false statement.

On 9/20/2024 at 5:53 AM, Analytics said:

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The alleged "breach" being about how the Church spent tithes and other sources of revenue.

No.

It. Is. Not.

This is unserious, uninformed, and incorrect.

On 9/20/2024 at 5:53 AM, Analytics said:

The specific claim is that the Church "owed the members of the Class all applicable fiduciary duties, including the duty to fully disclose to them all material facts and information in connection with its disposition of the donations. "(Paragraph 150).

No such duty exists.

On 9/20/2024 at 5:53 AM, Analytics said:

The alleged breach isn’t about how the money was spent. It was how the use of the funds wasn’t fully disclosed.

The “critical material fact,” Plaintiffs say, is that a “portion of donations made to [the Church] are not applied to” religion and charity but are, instead, placed in the Church’s reserves and invested for future use. Consol. Compl. ¶¶ 47-48.

You haven't even familiarized yourself with the pleadings, let alone the relevant sources and principles of law.

On 9/20/2024 at 5:53 AM, Analytics said:

The Church insists that the church autonomy doctrine applies to this, and I”m asking how.

I think you're just being coy and evasive. The doctrine has been discussed and explained many times over. You just keep acting like you do not understand it.

On 9/20/2024 at 5:53 AM, Analytics said:

Does the church autonomy doctrine give them the right to be dishonest with the membership regarding how funds will be spent?

Are you still torturing puppies for fun and profit?

Boy, loaded questions sure do advance the discussion about the MDL lawsuit.

On 9/20/2024 at 5:53 AM, Analytics said:

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You seem to not apprehend the difference between questions of fact and questions of law.

If you think I’m incompetent to practice law, then report me to the bar.

I think you are intelligent enough to have a decent conversation about the MDL lawsuit, if you were willing to set aside your antipathy toward the Church, abstain from re-casting and re-phrasing legal principles and issues in loaded and infammatory terms, familiarize yourself with the applicable principles of law, and generally evaluate the MDL lawsuit based on what the law is, not what you think it ought to be.

Alas, you are not doing any of these things very well.

On 9/20/2024 at 5:53 AM, Analytics said:

I’ll simply note that the plaintiffs said in paragraph 184 that the allegations they describe are factual and made in detail.

Right. And if the plaintiffs say they did it, it must be so. And Judge Shelby will genuflect before the plaintiffs' say-so.

Or . . . not.

The Utah appellate courts have provided extensive guidance on pleadings which do, and do not, meet the heightened pleading requirement associated with fraud claims. “[A] complaint cannot survive dismissal by pleading mere conclusory allegations…unsupported by a recitation of relevant surrounding facts.” State v. Apotex Corp., 2012 UT 36, ¶ 21, 282 P.3d 66 (omission in original) (citation and internal quotation marks omitted). Instead, to satisfy this requirement, the claimant must “set forth in specific terms the time, place, content, and manner of [the] defendant’s alleged material misrepresentations or otherwise fraudulent conduct.” Cook v. Zions First Nat’l Bank, 645 F. Supp. 423, 425 (D. Utah 1986). These are what the Utah Court of Appeals has described as “the who, what, when, where, and how: the first paragraph of any newspaper story.” Coroles v. Sabey, 2003 UT App 339, ¶ 28 n.15, 79 P.3d 974 (citation and internal quotation marks omitted).

The MDL plaintiffs have not done this.

On 9/20/2024 at 5:53 AM, Analytics said:

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Their actual claims are "weak" because they have very little chance of surviving dismissal under Rule 12.

If that’s true, then why bother evoking the church autonomy doctrine?

Oi.

Again, Rule 12 is like a bouncer at a night club. The owners of the night club give the bouncer criteria and guidelines for who can, and who cannot, get into the club. One such criterial may be that the doors are closed at 11:00 p.m. If someone shows up at 11:30, the bouncer will not let them in.

Similarly, Rule 12 may bar a lawsuit that is too late in being presented to the court, that is prohibited by the Statute of Limitations. So if I say that a claim is weak because it has very little chance of surviving dismissal under Rule 12 because of the Statute of Limitations issue, it would be nonsensical for you to say "If that's true, then why bother {in}voking the Statute of Limitations?"

When I first posted the link to the Church's Motion to Dismiss, I went out of my way to copy and paste the outline of the Church's argument. I think most, and perhaps all, of these arguments present formidable grounds for the Court to dismiss the MDL lawsuit under Rule 12. Here they are again:

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I. THE CHURCH MANAGES ITS FINANCES IN COMPLIANCE WITH THE LAWS AND REGULATIONS GOVERNING CHURCHES AND OTHER CHARITIES

II. THE CHURCH AUTONOMY DOCTRINE BARS PLAINTIFFS’ CLAIMS

-A. The Church Autonomy Doctrine Bars Suits Over Control Of Church Finances
-B. The Church Autonomy Doctrine Protects A Church’s Decisions About The Degree Of Financial Disclosure To Members
-C. Plaintiffs’ Requested Relief Plainly Violates The Church Autonomy Doctrine

III. PLAINTIFFS FAIL TO STATE A CLAIM

-A. Plaintiffs Fail To State A Claim For Breach Of Fiduciary Duty
--1. The Church Does Not Owe Plaintiffs A Fiduciary Duty
--2. Plaintiffs Have Not Pled Any Breach Of An Alleged Fiduciary Duty
--3. Plaintiffs Lack Standing To Pursue A Claim For Breach Of Fiduciary Duty

-B. Plaintiffs Fail To State A Claim For Fraudulent Inducement Or Fraudulent Misrepresentation
--1. Fraudulent Inducement (Count 2)—Plaintiffs Fail To Plead Falsity
--2. Fraudulent Misrepresentation (Count 4)—Plaintiffs Fail To Plead Falsity
--3. Counts 2 And 4—Plaintiffs Fail To Adequately Plead Reliance

-C. Plaintiffs Fail To State A Claim For Fraudulent Concealment
--1. The Church Did Not Owe Plaintiffs A Duty Of Disclosure
--2. Plaintiffs Do Not Plead And Cannot Establish Materiality

-D. Plaintiffs Fail To Plead Unjust Enrichment

IV. PLAINTIFFS’ CLAIMS ARE TIME-BARRED

-A. Utah’s Three-Year Statute Of Limitations Applies To Plaintiffs’ Fraud Claims
-B. Plaintiffs’ Fraud Claims Accrued More Than Three Years Before Plaintiffs Filed Suit
-C. Equitable Tolling Does Not Apply
-D. Plaintiffs’ Claim For Breach Of Fiduciary Duty Is Barred
-E. Plaintiffs’ Unjust Enrichment Claim Is Also Time-Barred

You are not addressing these things, and instead persist in asking questions that are irrelevant, or which have already been answered, that are couched in loaded and inflammatory terms, etc.

On 9/20/2024 at 5:53 AM, Analytics said:

Why imply that their dishonesty is justifiable under the law because church autonomy gives them license to lie to donors about how money will be spent?

An unserious question, unworthy of a response.

On 9/20/2024 at 5:53 AM, Analytics said:

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Those are legal theories of liability. I am asking you to explain factual underpinnings, not legal theories.

And I’m asking you to get that information from the actual complaint.

It ain't there. Hence the Church's arguments to that effect (from page 24 of Doc. 79) :

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Here, by asserting that “tithing” was used without saying what they mean, Plaintiffs fail to plead with sufficient specificity that the statements at issue were false. Falsity must be pled with particularity, meaning the plaintiff must “explain why the statement was misleading, and allege with particularity his basis for believing the statement was false.” Nakkhumpun v. Taylor, 782 F.3d 1142, 1147 (10th Cir. 2015). Plaintiffs fail to do that. Huntsman also demonstrates that courts cannot resolve a dispute over what “tithing” means, which is an ecclesiastical question.18
...
18 By a 2-1 vote, a three-judge Ninth Circuit panel reversed the district court’s decision. See Huntsman v. Church, 76 F.4th 962 (9th Cir. 2023). The panel decision, however, has since been vacated. Huntsman v. Church, 94 F.4th 781 (9th Cir. 2024) (granting en banc rehearing and vacating decision).

You are not addressing these things, and instead persist in asking questions that are irrelevant, or which have already been answered, that are couched in loaded and provocative terms, etc.

On 9/20/2024 at 5:53 AM, Analytics said:

"As described in detail in the factual allegations above, Defendants made material misrepresentations and omissions to Plaintiffs and the Class in the course of soliciting and use of donations." (Paragraph 184)

Where? Which paragraphs? To satisfy the pleading requirements for fraud, the claimant must “set forth in specific terms the time, place, content, and manner of [the] defendant’s alleged material misrepresentations or otherwise fraudulent conduct.” Cook v. Zions First Nat’l Bank, 645 F. Supp. 423, 425 (D. Utah 1986). These are what the Utah Court of Appeals has described as “the who, what, when, where, and how: the first paragraph of any newspaper story.” Coroles v. Sabey, 2003 UT App 339, ¶ 28 n.15, 79 P.3d 974 (citation and internal quotation marks omitted).

So, which paragraphs articulate with particularity “the who, what, when, where, and how: the first paragraph of any newspaper story”?

On 9/20/2024 at 5:53 AM, Analytics said:

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Again from Haramston:

What "decidedly secular facts" are in view here?

I would say that everything the church has said and done that would cause an informed member to believe that "the church really doesn't have the chance to put much tithing away in a rainy day fund. Probably not more than would keep the church running for a few months.”

Merely saying "everything the church has said and done" is nowhere near what the law requires.

On 9/20/2024 at 5:53 AM, Analytics said:

As I understand it, the Church can believe whatever it wants, but when they conceal, lie, and deceive about how money will be spent in order to induce people to donate, they are talking about secular things.

When did the Church "lie, and deceive about how money will be spent?" “{T}he who, what, when, where, and how..."

On 9/20/2024 at 5:53 AM, Analytics said:

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Fraud claims center on inducements to act. Here, the MDL plaintiffs were purportedly "induced" by the Church's false representations to pay tithes or continue to pay tithes. What were these false representations? Who made them? When? Where?

The supposed "concealment" being about the Church's finances, IOW, money.

A prima facie element of fraudulent concealment is a duty to disclose.

What "duty" does the Church have?

Where in the law is such a duty imposed?

And this duty is to disclose what?

And disclose it to whom?

And what evidence exists showing that this information was not disclosed?

You are now asking the right questions.

I smiled when I read this, as I think you intended it as a sort of "gotcha" moment.

I am asking these questions because the MDL Complaint lacks information answering them. This is one of reasons I think the Complaint will be dismissed under Rule 12.

Again: “A complaint alleging fraud should be filed only after a wrong is reasonably believed to have occurred; it should serve to seek redress for a wrong, not to find one.” Shah v. Intermountain Healthcare, Inc., 2013 UT App 261, ¶ 12, 314 P.3d 1079 (quoting Segal v. Gordon, 467 F.2d 602, 607–08 (2d Cir. 1972).

If the Complaint does not have information sufficient to answer even the most basic and prima facie factual components of the claims being presented, then it fails under Rule 12 and should be dismissed. This is particularly so under a more stringent pleading regime initiated in federal courts in 2008 by the U.S. Supreme Court.

On 9/20/2024 at 5:53 AM, Analytics said:

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Tell that to the Ninth Circuit:

Re-defining "tithing" is the entire basis for the Ninth Circuit's reversal of the lower court's decision.

No it isn’t. The Ninth Circuit didn’t say that they were going to use their judicial authority to redefine the religious doctrine of tithing and then impose their definition on things Church leaders said before the court-ordered definition was imposed. What they said was that a reasonable person standard should be used.

The Ninth Circuit's proffered analysis would play out in court. The MDL plaintiffs want Judge Shelby to let a jury empaneled in federal court choose whether to re-define "tithes" to mean both "one tenth of one's increase annually" and also any revenue generated from the Church's investment of those donations). Whether by federal judge or federal jury, such an action contravenes the Church Autonomy Doctrine.

On 9/20/2024 at 5:53 AM, Analytics said:

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Quote

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A claim that only arises if "tithes" are re-defined.

I’d be really surprised if the Church’s attorneys make this argument.

You apparently are not reading the briefs very closely. See Doc. 79, pp. 23-26, in which the Church's attorneys discuss this issue at some length.

That is false. Their attorneys neither say or imply that the plaintiffs theory only works if Judge Shelby radically redefine tithing.

From page 24 of Doc. 79: "Huntsman also demonstrates that courts cannot resolve a dispute over what 'tithing' means, which is an ecclesiastical question."

On 9/20/2024 at 5:53 AM, Analytics said:

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Well, not quite.

Fraud requires factual falsity. A person cannot commit fraud by making a statement of opinion or taste. Instead, the statement must be factual, and therefore factually false. The subjective assessment of a "reasonable person" receiving the representation is not relevant to this point.

Fraud also requires the intent to deceive (called "scienter"). That is, the purveyor of the false statement must have either known the statement to be false, or else made it "recklessly," knowing that he had "insufficient knowledge upon which to base such a representation." Again, the subjective assessment of a "reasonable person" receiving the representation is not relevant to this point.

Fraud also requires actual "reliance." If the MDL plaintiffs' claims were to proceed, I think this would be difficult to impossible to establish. In any event, they have likely failed to meet the threshold pleading requirement for this one (see Doc. 79, pp. 24-27, which addresses this point at length).

Fraud also requires that the reliance be "reasonable." This is addressed on pp. 28-31.

Fraud also requires that the misrepresentation be "material." This is addressed on pp. 28:

The "reasonable person" stuff is, in a Rule 12 context, a very small part of the overall assessment.

I congratulate you on asking some relevant questions here.

I get that you are going for some "ownage" points, but it's not working. I am asking questions that are not adequately answered in the Complaint (some aren't even addressed at all).

On 9/20/2024 at 5:53 AM, Analytics said:

Addressing one of these points, was their intent to deceive? The plaintiffs argue:

"Once the scheme was exposed, Roger Clarke, Ensign Peak’s CEO, conceded that they “tried to be somewhat anonymous” regarding LDS’s investments.46 The purpose of this, he explained, was to conceal the extent of LDS’s reserves from donors. In fact, Roger Clarke further stated the reason for the Church’s silence on its multi-billion dollar fund: “[s]o they neverwanted to be in a position where people felt like, you know, they shouldn’t make a contribution” (paragraph 102)

That looks like intent to me.

Roger Clarke's statement is presented as evidence of "intent to deceive" as to fraudulent concealment, not affirmative fraud.

And Clarke speaking of "'tr{ying} to be somewhat anonymous' regarding LDS's investments" is weak tea. I don't think it satisfies Rule 9.

On 9/20/2024 at 5:53 AM, Analytics said:

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Quote

Quote

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Those are the specific things they are suing about.

They are not suing about “the use of tithing."

Yes, they are.

No, they’re not. I know you wish they were making that argument because then you could evoke the ecclesiastical abstention doctrine, but you wishing that doesn’t make it so.

Roger, do you know what the current name of the lawsuit is?

I'm not sure why I should bother talking to you if you aren’t going to read what I said.

Above you said that "according to [me], the lawsuit is not about tithes."

That simply isn’t true.

My specific words were:

[Causes of Action One Through Five] are the specific things they are suing about. They are not suing about “the use of tithing."

Are you really going to argue with me about this?

This is tedious.

When you say that the MDL plaintiffs "are not suing about 'the use of tithing,'" when they clearly are, yes I will argue with you about that.

The First Cause of Action is "Common Law Breach of Fiduciary Duty" and is based on Utah Charitable Solicitations Act. From the Complaint:

Quote

149. As described in detail in the factual allegations above, LDS, including its employees, subsidiaries, affiliates, volunteers, and agents, promoted, advertised, provided instructions for, administered, oversaw, and collected donated funds from donors throughout Utah and the United States.

"{A}dministered ... donated funds" = "use of tithing"