Update on Huntsman Lawsuit: Ninth Circuit Reverses Trial Court

[smac97]

1 hour ago, Tacenda said:

I do have a concern of how tithing evolved to being income vs. interest.

I'm not sure what you mean here.

1 hour ago, Tacenda said:

In my mind's eye I picture interest being what's left over after the needs of the family are met, such as food and bills, schooling, mortgage etc.

Well, no.  In this context, "interest" refers to funds generated from investing principal.  If I make a loan of $1,000, and if that loan is repaid with $200 interest, then the amount of the loan was $1,000, not $1,200.

If the Church receives a $1,000 tithe, and invests it, and if that investment yields a profit of $200, then the amount of the tithe was $1,000, not $1,200.

This is nothing new or unique.  There is a lot of special pleading going on in this thread.  "Tithing" is being re-defined not because it makes sense, and not because the term is difficult to understand, but because the Church is in the crosshairs.

1 hour ago, Tacenda said:

This would be a much better plan since the church asks members to be self reliant, and not reliant on the church. Instead asking to pay 10 percent upfront of everything else isn't going to make a person very self reliant if they go to the church/government/family for help.

This often comes down to priorities, I suppose.  Maslow's hierarchy of needs posits the following prioritization:

Quote

Physiological needs

Physiological needs are the base of the hierarchy. These needs are the biological component for human survival. According to Maslow's hierarchy of needs, physiological needs are factored into internal motivation. According to Maslow's theory, humans are compelled to satisfy physiological needs first to pursue higher levels of intrinsic satisfaction. To advance higher-level needs in Maslow's hierarchy, physiological needs must be met first. This means that if a person is struggling to meet their physiological needs, they are unwilling to seek safety, belonging, esteem, and self-actualization on their own.

Physiological needs include:

• Air
• Water
• Food
• Heat
• Clothes
• Urination
• Excretion
• Shelter
• Sleep

These physiological needs must be met for the human body to remain in homeostasis. Air, for example, is a physiological need; a human being requires air more urgently than higher-level needs, such as a sense of social belonging. Physiological needs are critical to "meet the very basic essentials of life". This allows for cravings such as hunger and thirst to be satisfied and not disrupt the regulation of the body.

Money is not needed for "air," but pretty much all these other basic needs typically require some sort of financial outlay.  Few people can be wholly "self-reliant" in terms of growing all the food they need, or getting water, having a heat source, making clothing, disposing of bodily waste, and having a place for "shelter" and to "sleep."  Most of us meet most or all of these needs by paying for them with money.  

The monies need to pay for these necessaries can be significant, but then a lot of us have a whole lot of financial expenditures that, frankly, can be reduced, eliminated, or subordinated:

• A flip phone instead of a smartphone with a pricy monthly charge. 
• A smaller, more modest house as opposed to a bigger, more expensive one. 
• An older, more "sensible" car (and/or using public transit) rather than a newer, more expensive one. 
• Preparing meals at home rather than eating out.  Simple, inexpensive meals rather than expensive ones. 
• Reducing/avoiding behaviors/habits that contribute to health issues (and adopting behaviors/habits that improve health). 
• Buying affordable clothing.
• Getting rid of (or never purchasing) expensive "toys" (RVs, boats, ATVs, etc.), personal effects and items (jewelry, watches, computers, games, etc.).
• Avoiding or postponing expensive hobbies and entertainment (travel, concerts, flying, etc.)

And on and on and on. 

Many of the above items address necessaries, and substantial variability on financial expenditures on those necessaries.  

I have observed many people who have moderated both discretionary expenditures and "necessaries."  I have also observed many people who have not moderated their expenditures on these things, and who therefore often live beyond their means.

I remember seeing this commercial years ago, and it was both funny and sobering:

There are, of course, individualized circumstances which can arise which leaves an individual or family with essentially all of its financial resources going toward even modest "necessaries."  Bishops handle those circumstances all the time, and address them on a case-by-case basis.  And the Church often provides assistance in such circumstances.  And sometimes the individual or family is excused from paying tithing (that is, they can continue to hold a temple recommend).

Tithing is often a more a matter of choice and prioritization, rather than a matter of a genuine dilemma.  In the end,  tithing is an important commandment, and for many a difficult one.  Most of us don't really have a problem with "Thou shalt not kill," but 10% is, for many/most of us, a significant sacrifice.  It's intended to be, I think.

Thanks,

-Smac

Edited August 10, 2023 by smac97

[smac97]

10 minutes ago, ttribe said:

Quote

Quote

Well, as it turns out, the Church's MOST profitable venture (Ensign Peak) doesn't pay any income taxes.

Is Ensign Peak legally obligated to pay income taxes?

Do you voluntarily pay taxes you are not obligated to pay?

Uhhh, my point was that they are not obligated.

I get that.  But I construed your comment as being critical of this state of affairs, that it is problematic that EPA "doesn't pay any income taxes."  

If I misunderstood you, I apologize.

Thanks,

-Smac

[jkwilliams]

18 hours ago, ttribe said:

Yeah...I'd be happy to have the cash back, but that kind of dream is generally associated with excessive alcohol use or recreational pharmaceuticals.

Yeah, and I haven’t had a drink in quite a while. A friend who is an attorney suggested that the church might settle this because, if the court issued a finding of fact that the church misrepresented how tithing is spent, this might open the floodgates to a class-action suit. I’m not a lawyer, so I don’t know. 

My occasional brush with Mormonism: yesterday I was loading groceries into my car when all of a sudden a young woman approached me from the side and a little behind. I didn’t see her until she was right next to me, and she kind of startled me. She asked, “Would you like to go to church with us on Sunday?” It was then that I saw the black badge and her companion behind her. I told her she was too late because I already belong to her church. “Oh, that’s awesome,” she said and walked away. 

Is this a new proselytizing tactic? Seems a little weird.  

[helix]

3 hours ago, webbles said:

He actually did.  In his first comment in 2003, he said (quoting from the appeals decision):

I think we are agreeing in facts, just disagreeing how it's read.  Both you and I know funds came from two sources. My beef here is that Teancum's statement was heavily misleading and wrong. I should have better rephrased it as "You're putting words in Hinckley's mouth that he didn't say" As Teancum said:

  

7 hours ago, Teancum said:

Hinckley said it came from other business arms of the church.  That was not true.

Someone new to this conversation, hearing that, would be terribly confused. Teancum was wrong implying funds only came from one source. He was also wrong to suggest no funds came from business.

As you know, the funds came from two sources 1) earnings on business ventures and and 2) earnings on reserve funds.

In 1991 in General Conference Hinckley explicitly said most church income was from tithing, and that some income (mostly if not all tithing) was set aside as a reserve. "In the financial operations of the Church, we have observed two basic and fixed principles: One, the Church will live within its means. It will not spend more than it receives. Two, a fixed percentage of the income will be set aside to build reserves against what might be called a possible “rainy day.”"

In 2003, Hinckley said the mall would come from two sources. Source 1 is business: "Funds for this have come and will come from those commercial entities owned by the Church."  Source 2 is mostly, if not fully, earnings on unspent tithing: "together with the earnings of invested reserve funds, will accommodate this program."

What Teancum should have said was "Hinckley said funding came from both the business arms and earnings on excess reserves, which includes invested earnings on unspent tithing saved for a rainy day."

Edited August 10, 2023 by helix

[Teancum]

6 hours ago, Stormin' Mormon said:

I work for a local government. 

Good for you.

 

6 hours ago, Stormin' Mormon said:

 

My salary literally comes from the taxes levied by my town and state.  But when I go to Taco Bell to get a Beefy Crunch Burrito, no one can argue that I'm using taxpayer's dollars for my personal benefit.  

Ok.

6 hours ago, Stormin' Mormon said:

My salary is only two steps removed from the taxpayer--it goes from taxpayer to the government to my bank account.  And yet, no one has ever argued that my Taco Bell addiction is a misuse of taxpayer dollars.  Interest on EPA investments have a similarly attenuated relationship to tithing, but with an extra step added--it goes from the tithe payer to the church to EPA, which then generates interest.  (And, I have to note, the interest does not sprout from the principal like a tree sprouting from a seed; it is a payment from a third party that's not even in the tithe payer-to-EPA chain of custody).  

So, what's the difference?  How come my Beefy Crunch Burrito doesn't come from tax dollars, but EPA interest earning do come from tithing?  

 

Yea it is not the same, IMO.  But that's ok.

[Teancum]

6 hours ago, webbles said:

President Hinckley also said that it came from the "earnings of invested reserve funds".  The trial judge and the appeals dissent understood that to mean funds from EPA that originated from tithing but aren't tithing.  The majority in the appeal read that to mean it was reserves from the other business arms of the church.  And part of the reason they read it that way is that they don't see the church's income to include tithing.

I don't see President Hinckley being disingenuous.  If he honestly doesn't see the "earnings of invested reserve funds" as being tithing, then he isn't saying something wrong.  If I was in his place, I'd probably say the same thing.  Yes, it is earnings on tithing money, but I don't see it as tithing.  You do and Nielsen gave an affidavit saying that others in EPA see the same way you do.  So a jury might be given the chance to decide whether the "common member" believes it that way.

I guess the courts will have to work through all of this.

[Teancum]

4 hours ago, helix said:

He absolutely did not say that.

Ok.  What did he say?

[Teancum]

3 hours ago, Calm said:

But not all the growth comes from tithing. It also comes from the interest being added back in or kept in, however you want to describe it. 
 

 

I find it highly problematic to condemn someone of lying or fraud based on someone else’s  educated guesses instead of actual fact. Why wouldn’t church leaders take excess from businesses owned and also put that excess in EPA as well rather than have other funds for that purpose?  Is there a tax issue preventing that?  Seems like a duplication of effort that would not be cost efficient. 

Here is the deal.  Everything the church has comes from members donations. If they take excess funds and invest in EPA, it all came from donations ultimately.  If they put it into other for profit ventures it all came from donations.  Tithing mostly.  So if it makes everyone feel better that EPA has only given a few billion out of its hundred plus billion to the City Creek Mall and to the insurance company and you can say, "well it was not tithing but earnings on excess tithing so hooray!" more power to you. When I tithed I did not know this.  And I gave a lot in tithing.  I had no idea a good chunk of that was going into what is now an enormous reserve fund.  Had I know that I may have made a different decision.

[helix]

6 hours ago, Teancum said:

When I tithed I did not know this.  And I gave a lot in tithing.  I had no idea a good chunk of that was going into what is now an enormous reserve fund.

But that's not the church's fault. Hinckley already explained this in 1991 and 2003.  The church tithes (D&C 119). The church puts aside a small fixed portion of yearly income (like Joseph of Egypt) for a rainy day. The church invests money not being put to use to gain more to be a good steward (Jesus's parable of the talents). The church makes a clear distinction between tithing and money earned from tithing (Hinckley, 1991 and 2003).  Nothing here is nefarious, and it's far, far from fraudulent.
 

Edited August 11, 2023 by helix
"the the church" fixed to "not the church"

[Tacenda]

41 minutes ago, Teancum said:

Here is the deal.  Everything the church has comes from members donations. If they take excess funds and invest in EPA, it all came from donations ultimately.  If they put it into other for profit ventures it all came from donations.  Tithing mostly.  So if it makes everyone feel better that EPA has only given a few billion out of its hundred plus billion to the City Creek Mall and to the insurance company and you can say, "well it was not tithing but earnings on excess tithing so hooray!" more power to you. When I tithed I did not know this.  And I gave a lot in tithing.  I had no idea a good chunk of that was going into what is now an enormous reserve fund.  Had I know that I may have made a different decision.

I was one of those that pay on each and every paycheck, on gross and if it wasn't on gross, on my tax refund. I remember a friend telling me she only paid annually to earn interest on her money, maybe she knew more than I.

[Teancum]

35 minutes ago, helix said:

But that's the the church's fault. Hinckley already explained this in 1991 and 2003.  The church tithes (D&C 119). The church puts aside a small fixed portion of yearly income (like Joseph of Egypt) for a rainy day. The church invests money not being put to use to gain more to be a good steward (Jesus's parable of the talents). The church makes a clear distinction between tithing and money earned from tithing (Hinckley, 1991 and 2003).  Nothing here is nefarious, and it's far, far from fraudulent.
 

Well I am not looking to be reimbursed for my historical tithes. Whether or nor the Huntsman case haas further merit I guess is for the courts to decide.  And no I don't feel like I was defrauded.  I just may have made different decisions.  On the other hand when I tithed I was a full believing member so likely I would not have stopped paying tithing. 

[Nofear]

5 hours ago, bluebell said:

Oh my, I can't believe they taught that to the missionaries.  I'm pretty sure you can't force the Lord's hand through a loophole.

5 hours ago, Calm said:

That comes across as bargaining with the Lord as well as dictating to him how his blessings should be delivered. 

Struck me as wrong then too. But, I'm also confident that the Lord knows how to respond to the millions+ of prayers that are vain attempts to bargain, cajole, bribe, or otherwise manipulate or anything like unto it. No matter how much I may want this or that request, I try to humbly acknowledge that He *always* has my best interest at heart and defer to His way and/or timing (though I ofter don't know what/when that is, so that complicates things).

The tithing manipulation story goes contrary to all that. I still loved my experience as a missionary, even the MTC. As I sometimes glibly say, if the Church wasn't the Lord's, the missionaries would have destroyed it long ago.

Edited August 10, 2023 by Nofear

[Calm]

36 minutes ago, Nofear said:

the missionaries would have destroyed it long ago

Or mission presidents from what I have heard (not all of them of course).

[smac97]

2 hours ago, jkwilliams said:

Yeah, and I haven’t had a drink in quite a while. A friend who is an attorney suggested that the church might settle this because, if the court issued a finding of fact that the church misrepresented how tithing is spent, this might open the floodgates to a class-action suit. I’m not a lawyer, so I don’t know. 

Fraud is one of the most difficult civil claims to prove.  It must be pleaded with "particularity" on the front end and then proven up to a "clear and convincing" evidentiary standard in summary judgment or at trial.  See, e.g., here:

Quote

“ ‘The elements of fraud, which give rise to the tort action for deceit, are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or “scienter”); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.’ ”  (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.)  To maintain any fraud action, a plaintiff must show that he or she changed position in reliance upon the alleged fraud and was damaged by that change of position.  (Civ. Code, § 1709.)  For example, in Lazar, evidence that the plaintiff had quit his job and moved across the country in reliance upon the defendant’s misrepresentations, would have been sufficient to demonstrate a detrimental change of position.  (Lazar v. Superior Court, supra, 12 Cal.4th at p. 639.)   

I'm not sure that Mr. Huntsman will be be able to establish most or all of these elements.  The the "misrepresentation" prong likely fails, as I think Pres. Hinckley's remarks were factually accurate.  Same with "scienter." 

Regarding the "reliance" and "damages" prongs, as I recall, Huntsman had been paying tithing long before Pres. Hinckley made public remarks about City Creek, and continued to tithe well after.  So how did he "{change his} position in reliance upon the alleged {misrepresentation}" by Pres. Hinckley?  Does he have any evidence that he had stopped paying tithing prior to Pres. Hinckley's remarks, and that he only resumed paying tithes after he heard Pres. Hinckley's remarks?  I think . . . probably not.  If his "position" (that is, regularly paying tithes) was not affected by Pres. Hinckley's remarks, then he can't claim to have "changed position in reliance" on Pres. Hinckley's remarks, or that he was "damaged by that change of position."

Thanks,

-Smac

[The Nehor]

3 minutes ago, smac97 said:

Fraud is one of the most difficult civil claims to prove.  It must be pleaded with "particularity" on the front end and then proven up to a "clear and convincing" evidentiary standard in summary judgment or at trial.  See, e.g., here:

I'm not sure that Mr. Huntsman will be be able to establish most or all of these elements.  The the "misrepresentation" prong likely fails, as I think Pres. Hinckley's remarks were factually accurate.  Same with "scienter." 

Regarding the "reliance" and "damages" prongs, as I recall, Huntsman had been paying tithing long before Pres. Hinckley made public remarks about City Creek, and continued to tithe well after.  So how did he "{change his} position in reliance upon the alleged {misrepresentation}" by Pres. Hinckley?  Does he have any evidence that he had stopped paying tithing prior to Pres. Hinckley's remarks, and that he only resumed paying tithes after he heard Pres. Hinckley's remarks?  I think . . . probably not.  If his "position" (that is, regularly paying tithes) was not affected by Pres. Hinckley's remarks, then he can't claim to have "changed position in reliance" on Pres. Hinckley's remarks, or that he was "damaged by that change of position."

Thanks,

-Smac

This.

While I think the summary judgement was rightfully overturned I don’t think he will win the case.

[carbon dioxide]

The basic view of tithing is that it is given with no strings attached by the person paying the tithing.  The Church has never said as far as I know that the money goes to A, B, and C and not ever to go to X, Y, and Z.  I really don't understand Huntsman position.  He may have had perhaps a personal expectation, but the Church was not required to follow his personal expectations.  Perhaps the Church can show some charity to Huntsman.   Calculate the percentage from the total fund that went to the mall and give him a rebate of that percentage which is probably just a few percent.

[JustAnAustralian]

2 hours ago, smac97 said:

as I recall, Huntsman had been paying tithing long before Pres. Hinckley made public remarks about City Creek, and continued to tithe well after

The claim in the initial complaint document https://storage.courtlistener.com/recap/gov.uscourts.cacd.814559/gov.uscourts.cacd.814559.1.0_1.pdf says

Quote

Each year from 1993 to 2017, Mr. Huntsman paid a yearly tithing to the LDS Corporation equal to 10% of his annual income,

So he was paying for 10 years before the 2003 statement, and 14 years after. It wasn't due to the whistle blower that he stopped though.

Edited August 11, 2023 by JustAnAustralian

[The Nehor]

4 hours ago, carbon dioxide said:

The basic view of tithing is that it is given with no strings attached by the person paying the tithing.  The Church has never said as far as I know that the money goes to A, B, and C and not ever to go to X, Y, and Z.  I really don't understand Huntsman position.  He may have had perhaps a personal expectation, but the Church was not required to follow his personal expectations.  Perhaps the Church can show some charity to Huntsman.   Calculate the percentage from the total fund that went to the mall and give him a rebate of that percentage which is probably just a few percent.

The Church specifically and repeatedly made statements that tithing funds would not be used.

[bsjkki]

Lovely. https://www.dailymail.co.uk/news/article-12393819/Son-Mormon-billionaire-Jon-Huntsman-accuses-church-lying-billions.html

[Calm]

So when did it get calculated as $175 billion?

Quote

In particular, he alleges that Ensign Peak, which manages a fund thought to be worth up to $175bn, paid out $1.4billion to prop up its financially troubled business, City Creek Center, the upscale shopping mall in downtown Salt Lake City.

 

 

Edited August 14, 2023 by Calm

[Thinking]

On 8/10/2023 at 5:23 PM, Calm said:

Or mission presidents from what I have heard (not all of them of course).

I love my former mission president. He definitely was not the reason I stopped believing. He was calm, understanding, and really cared about the people and the missionaries.

[Calm]

1 hour ago, Thinking said:

I love my former mission president. He definitely was not the reason I stopped believing. He was calm, understanding, and really cared about the people and the missionaries.

Never had one, but my husband loved his. My son had two and the first was “gee, I thought I already graduated from high school”.  And the last he loved. 

[Tacenda]

On 8/10/2023 at 8:08 PM, carbon dioxide said:

The basic view of tithing is that it is given with no strings attached by the person paying the tithing.  The Church has never said as far as I know that the money goes to A, B, and C and not ever to go to X, Y, and Z.  I really don't understand Huntsman position.  He may have had perhaps a personal expectation, but the Church was not required to follow his personal expectations.  Perhaps the Church can show some charity to Huntsman.   Calculate the percentage from the total fund that went to the mall and give him a rebate of that percentage which is probably just a few percent.

He may have paid tithing before the wording changed at the bottom of the tithing slip. And was he made aware of the change.

[smac97]

Sam Brunson weighs in on the 9th Circuit reversal:

Quote

Was the Court of Appeals right? Frankly, I’m not convinced. It basically turns on whether a reasonable person would believe that “tithing” included not just the church’s tithing revenue, but income earned on that tithing revenue.[fn1] And honestly, that’s a pretty absurd assertion; every financial endeavor that includes both principal and income on the principal distinguishes the two. And it’s even tougher to believe given that Huntsman (remember, this is James, not John Sr. or Jr.) is a sophisticated businessperson. As such, it’s relatively unbelievable that he wouldn’t have understood that differentiation. (The dissent makes this and other points and is, frankly, more convincing imho.)

I share this assessment.  As I noted previously, there is a lot of "special pleading" going on here:

Quote

Special pleading is an informal fallacy wherein one cites something as an exception to a general or universal principle, without justifying the special exception.  It is the application of a double standard.

The "general or universal principle" here is the meaning of "tithing," which is typically (that is, "generally" or "universally") defined as "the tenth part of agricultural produce or personal income set apart as an offering to God or for works of mercy, or the same amount regarded as an obligation or tax for the support of the church, priesthood, or the like," and more particularly in the Church as:

Quote

Tithing is the basic contribution by which Latter-day Saints fund the activities of the Church. By revelation to the Prophet Joseph Smith, the Lord stated that members should pay "one-tenth of all their interest [increase] annually; and this shall be a standing law unto them forever" (D&C 119:4).

See also here:

YourDictionary.com: "One tenth of the annual produce of one's land or of one's annual income, paid as a tax or contribution to support a church or its clergy."

Vocabulary.com: "To tithe is to make a contribution equal to one-tenth of your income, usually to a church or religious institution."

Collins Dictionary: "A tithe is a fixed amount of money or goods that is given regularly in order to support a church, a priest, or a charity."

American Heritage Dictionary: "A portion of one's annual income contributed voluntarily or due as a tax, especially a contribution of one tenth of one's income for the support of the clergy or church."

Legal-Dictionary.com: "In Western ecclesiastical law, the act of paying a percentage of one's income to further religious purposes."

Nobody, no reasonable person, understands "tithing" to be defined as above and also including income earned on invested tithed funds.  

Huntsman is resorting to special pleading, he is re-defining "tithing," not because, as Brunson puts it, "a reasonable person would believe that 'tithing' included not just the church’s tithing revenue, but income earned on that tithing revenue," but because his lawyers have told him that the lawsuit's only chance of survival is to re-define the word to fit their legal theory.

Quote

So has Hunstman won? Far from it at this point. The court merely said that, as a matter of law, it’s possible that he was defrauded. He still faces the burden of demonstrating (a) that the church’s statement that it didn’t use tithing money to build City Creek was fraudulent and (b) that he relied on that statement in paying his tithing. Both, I think, are heavy lifts, and both lifts are his.

Brunson is quite right here.  Fraud is a very tough row to hoe.

Quote

If, that is, it even gets there. Because the church can also file a petition for rehearing. Basically, that would mean that a larger panel of the 9th Circuit would take a second look and either affirm or reverse the three-judge panel that issued this ruling. That en banc panel could uphold this month’s ruling. It could reverse it. And if it upholds the ruling, then Huntsman and the church move to discovery and a jury trial. If it reverses and grants the church’s motion for summary judgment, by contrast, the suit is over.

I am curious A) whether the Church will seek a rehearing, and B) what the outcome of an en banc hearing would be.  The 9th Circuit decision was, essentially, 2-1.  And the dissent is very good.  Interestingly, the dissenting judge, Edward R. Korman, is not actually a judge appointed to the Ninth Circuit Court of Appeals, and is instead a U.S. District Court Judge from New York, "sitting by designation" (temporarily assigned to the Ninth Circuit) in this case.

Quote

And, in fact, on August 14, the church requested permission to extend the deadline for filing its petition for rehearing. Three days later, the court granted that petition. The church now has until September 20 to file for a rehearing.

Will it be granted? I suspect it will, though there is no guarantee. Either way, though, given that it took two years for the 9th Circuit to issue its decision, I suspect this case is a long way from being done.

I suspect the Church will exercise this right and request a rehearing.  I also suspect that the Ninth Circuit will grant the petition (though this may be more wishful thinking on my part).

Rehearings in the Ninth Circuit are heard by eleven judges.  

Some interesting comments to Brunson's article:

Quote

I’m imagining a lawyer for the church cross-examining Huntsman about his reasons for paying tithing. What were his reasons for paying tithing before the church announced City Creek? Did those reasons still apply after the City Creek announcement? I don’t imagine the answers lead to proving his case. Huntsman will come out of this being the ultimate example of, to use a much abused phrase, someone who “can’t leave the church alone”, and will have nothing to show for it.

As JustAnAustralian previously noted, Huntsman "was paying for 10 years before the 2003 statement, and 14 years after."  The "10 years before the 2003 statement" is going to be hard for Huntsman to explain in the context of claiming "fraud," as there was no reliance, "reasonable" or otherwise, on any statement about the use of tithing funds.

Another:

Quote

Is Huntsman even trying to win here? Or is he trying to force discovery, which would allow his lawyers to ask Church officials embarrassing questions while they are under oath?

Yes, I think that's what Huntsman is trying to do.

I conclude with noting this astute observation from the dissenting opinion (emphases added) :

Quote

The majority suggests that Hinckley used an “undefined or specialized terms that his audience would not understand.”  Maj. Op. at 25.  I agree in principle that adding a caveat in a foreign language or a specialized term that could not be understood would not defeat a fraud claim.  But in this case, there is no evidence that Hinckley’s statements would have been the equivalent of a foreign language to this specific plaintiff.  Indeed, this is not a class action; Hinckley’s audience for purposes of this action was Huntsman, a sophisticated individual who has been immersed in the Church for much of his life.  

Hinckley had good reason to believe that Huntsman would have understood the language Hinckley used, and as the majority recognizes, Hinckley’s intent, which is based on such an understanding, is a critical element of plaintiff’s fraud claim.  A reasonable juror could therefore not find that Hinckley made “a knowingly false representation of fact.”  Orient Handel, 237 Cal. Rptr. at 672.  Born in 1971, Huntsman was raised in a prominent family in the Church, and, as the majority points out, he considered himself to be “one of the Church’s most devout members.”  Indeed, “he was raised in the LDS Church where he faithfully attended weekly meetings, watched biannual general conference broadcasts, tithed, and donated to the fast offering and missionary funds.”  In 1990, Huntsman was ordained an Elder and began a two-year mission to Germany, and he has since “held numerous leadership and teaching assignments within the Church,” “including missionary zone leader and trainer (five times), Elders Quorum President, Ward Mission Leader, Stake Mission Presidency, High Council and Gospel Doctrine teacher (on and off for eight years).”  Moreover, “Huntsman worked at Huntsman Corporation for 23 years, has run several businesses and currently owns and operates Blue Fox Entertainment.” 

Huntsman was aware that the Church owned commercial ventures, and he kept up to date on Church affairs, as his practice was to “read the complete conference sessions in the Ensign Special Edition.”  Indeed, as a young man, as early as in his 20s and 30s, Huntsman was curious about the Church’s use of tithing contributions, but he did not need to ask how his contributions were being spent “[b]ecause the answer at the time was provided in Church manuals, priesthood manuals, General Conference, Church magazines, and Sunday school.”  In other words, Huntsman was familiar with the Church’s operations and publications.   

All this significantly weakens the majority’s analogy to a foreign language.  And, in my view, the record is clear that Hinckley would have expected Huntsman—from a prominent family and himself a leader in the Church—to understand the terminology Hinckley used.

It's a mighty tough sell for Huntsman.

Thanks,

-Smac

Edited August 22, 2023 by smac97

[Analytics]

1 hour ago, smac97 said:

Sam Brunson weighs in on the 9th Circuit reversal:

Was the Court of Appeals right? Frankly, I’m not convinced. It basically turns on whether a reasonable person would believe that “tithing” included not just the church’s tithing revenue, but income earned on that tithing revenue.[fn1] And honestly, that’s a pretty absurd assertion; every financial endeavor that includes both principal and income on the principal distinguishes the two. 

Sam Brunson is wrong on this point. As an example, on November 30, 2016, a House subcommittee had a hearing about the Federal Long Term Care Insurance Program. In that hearing, Glenn Grothom (R-Wisconsin) asked the following:

...I don't care whether it's 
health insurance, car insurance, whatever, you always kind of 
wonder how much of that premium is going for claims and how 
much is going for overhead and commissions and that sort of 
thing.
    Could you give me, the insurance industry in general, how 
much of, say, auto insurance, health insurance, and long-term 
insurance, how much goes for claims?

Marc Cohen answered the question as follows:

At least historically when these products have 
been priced, the idea was that somewhere between 60 to 70 
percent of the dollars that were collected would eventually get 
paid out in claims.

See:https://www.congress.gov/event/114th-congress/house-event/LC52104/text?s=1&r=63

I'm not 100% positive what Congressman Grothom meant by his question, but I am positive that Professor Cohen interpreted the question as including both principle and interest. When a long-term care insurance policy is sold, most of the premiums in the early years of the policy are invested, and the insurance company then relies on both principle and interest to eventually pay the claims. When Professor Cohen said 60-70% of premiums goes to claims, he meant 60-70% of premiums, accumulated with interest, go to paying claims. 

Just as Marc Cohen interpreted "how much of that premium is going for claims" as including interest, it is eminently reasonable to infer that when the Church said "no tithing money was used" it meant that no tithing money, accumulated with interest, was used.

Given the fungible nature of money, this should be obvious. Unless the Church has an account with only pure unadulterated "tithing money" and another account with the sullied investment income, how would it know whether a dollar it spent was actual tithing or whether it was the investment income?