Update on Huntsman Lawsuit: Ninth Circuit Reverses Trial Court

[Rain]

1 hour ago, bluebell said:

Interesting.  I would define "active member" differently than Mr. Christensen's lawyer is (since he hasn't paid tithing since 2022), but that's a squibble that reasonable people can disagree on.  It would be interesting to know if he remains an active member if the lawsuit doesn't go in his direction (purely for curiosity's sake).

I agree with you though that if the church was transparent, resentment on this specific issue would go down.  I don't know that resentment against the church would follow suit or if it would be transferred to a different topic.  Probably no way to actually know that since it's so subjective.

Tithing has never been something I considered when thinking of active members.  There are lots of people that come every week and participate in other ways, but are not full tithe payers so it's never been something that would have even been in my consideration about being "active".  I wonder where most people stand on that,

[bluebell]

3 minutes ago, Rain said:

Tithing has never been something I considered when thinking of active members.  There are lots of people that come every week and participate in other ways, but are not full tithe payers so it's never been something that would have even been in my consideration about being "active".  I wonder where most people stand on that,

I agree.  I've just never personally met someone who considered themselves to be an active/believing member who paid zero in tithes and offerings when they did make money and could choose to pay them if they wished.

I'm sure they are out there (apparently this guy is one), it's just not how I would typically define the term. 

[ZealouslyStriving]

3 hours ago, Analytics said:

If the Church were financially transparent, there would be a lot less resentment among former members on this issue.

🤨 Mhm

[PacMan]

On 8/13/2024 at 5:46 PM, Analytics said:

If the Church were financially transparent, there would be a lot less resentment among former members on this issue.

Not a chance. If people had the emotional intelligence and intellectual integrity not to care about what the finances looked like if they were available, then they’d also have the emotional intelligence and intellectual integrity to not need to know in the first place. 

[Stargazer]

On 8/14/2024 at 12:46 AM, Analytics said:

If the Church were financially transparent, there would be a lot less resentment among former members on this issue.

There are two chances of that: fat and slim.

[JustAnAustralian]

Re: Huntsman suit

Oral arguments 25th September https://storage.courtlistener.com/recap/gov.uscourts.cacd.814559/gov.uscourts.cacd.814559.72.0.pdf

[smac97]

On 8/13/2024 at 10:32 AM, smac97 said:

An update from the Trib: New class-action case over tithing could lead to millions suing the LDS Church

Here is a link to the court filing mentioned above.  it is a "Motion to Stay," that is, a request for the Court to freeze the discovery phase of the lawsuit until motions to dismiss are heard and adjudicated. 

Here is an update on the Motion to Stay: LDS Church can’t use religion to dodge sharing evidence in tithing case, say opponents

Quote

The Church of Jesus Christ of Latter-day Saints and its investment firm should not be able avoid sharing evidence in a high-profile tithing lawsuit simply by invoking the idea of religious autonomy, say former and disaffected members who are suing the Utah-based faith.

In what amounts to the opening spat in a brewing federal class-action case over millions of dollars raised with the sacred donation practice, plaintiffs are pushing back on the church’s assertions it should have qualified immunity from discovery early in the litigation.

I suspect that forcing the Church into discovery is one of the primary, if not the primary, objectives of the lawsuit.  I think the suit on its own merits has a very low chance of success.

Quote

In a motion filed Aug. 23, lawyers for the church have asked U.S. District Court Judge Robert Shelby in Salt Lake City to put any quests for evidence in the lawsuit on hold until he can decide whether to dismiss the entire matter later this fall.

It looks like the Trib's editors are asleep at the wheel.  The link above takes the reader to a Trib article dated August 13, which in turn discusses the "Motion to Stay" mentioned in my previous post.  This motion was filed on August 9, not August 23.  The MDL plaintiffs filed their opposition to this motion on August 23.  Here is a link to this opposing memorandum.  Some excerpts:

Quote

Only “a strong showing of necessity” justifies a stay of discovery. Before the Court grants a request for such a stay, the movant should demonstrate hardship or inequity by detailing how participation in discovery would be burdensome or prejudicial.

Defendants the Church of Jesus Christ of Latter-day Saints (“LDS”) and Ensign Peak Advisors, Inc. (“Ensign”) do not come close. They assert that the church autonomy doctrine shields them from discovery as a matter of law. This premise is manifestly incorrect...
...
This Court set forth the standard for a motion to stay discovery in Classic Aviation Holdings LLC v. Harrower, No. 2:20-cv-00824-RJS-JCB, 2021 WL 633587 (D. Utah Feb. 18, 2021): The right to proceed in court should not be denied except under the most extreme circumstances, a party seeking a stay of discovery must make “a strong showing of necessity.” Id. at *2 & n.14 (citing Commodity Futures Trading Comm’n v. Chilcott Portfolio Mgmt., Inc., 713 F.2d 1477, 1484 (10th Cir. 1983) and White Knuckle, IP, LLC v. Electronic Arts Inc., No. 1:15-cv-00036-DN-BCW, 2015 WL 5022579, at *1 (D. Utah Aug. 24, 2015)). To do this, a movant must demonstrate a clear case of hardship or inequity. Classic Aviation, 2021 WL 633587 at *2 & n.15 (citing Ben Ezra, Weinstein, & Co. v. Am. Online Inc., 206 F.3d 980, 987 (10th Cir. 2000)).

The Classic Aviation case was not a class action lawsuit, whereas the MDL lawsuit is.  The Church's Motion addresses the difference:

Quote

“Given the burden, time, and expense often associated with responding to discovery in a putative class action, courts regularly stay discovery pending a ruling on a motion to dismiss.”  Rodriguez v. Ford, 2022 WL 704780, *2 (N.D. Ill. 2022).
...
It is likewise well-established that discovery should be delayed where (as here) the Church Autonomy Doctrine is implicated. The Tenth Circuit has equated the Church Autonomy Doctrine with qualified immunity and directed that, like qualified immunity, the Church Autonomy Doctrine must “be resolved at the earliest possible stage of litigation” to “protect[] a church’s Free Exercise rights.” Bryce v. Episcopal Church, 289 F.3d 648, 654 (10th Cir. 2002).

The MDL plaintiffs make no effort to respond to or rebut the Rodriguez case.  That's usually not a good sign.  They do address the Bryce case, though, and do a pretty good job of it.  

I will be curious to see which way Judge Shelby goes.  

Quote

Firing back on Friday, lawyers for the plaintiffs say the church is grasping for “grab-bag arguments” to assert it has an “automatic” right of immunity to discovery.

They note that Ensign Peak is an “indisputably secular” money manager — and not subject to any potential religious barriers in the same way.

I don't think this will work.  As we have discussed many times, EPA is an "integrated auxiliary" of the Church, so labeling it as "secular" (even "indisputably" so) does not work.  

Quote

Plus, tithes are not the only church donations at issue in their fraud claims, the plaintiffs say, noting that fast offerings — in which devout members go without food for 24 hours and then give the money saved by skipping those meals to help the poor — and contributions solicited by a church charity are also part of their lawsuit.

The Plaintiffs in one breath says that the Church's EPA is "indisputably secular," and in the next they are talking about tithes and fast offerings being part of their lawsuit.  They undercut themselves here.

Quote

Most basically, they argue, even if the church were the sole defendant and only tithing were at stake, the plaintiffs’ assertions could still be decided in court without ever having to delve into the religious principles behind the doctrine of tithing.

I don't think this argument holds.  This lawsuit only works if the Court re-defines "tithing" and foists that definition onto the Church.

This also seems a bit dissembling given that the MDL lawsuit wants the Court to declare the church’s financial practices illegal and order a halt to it collecting tithing altogether while accountants sort through the faith’s finances or the court appoints a special monitor.

Quote

The church has said that demands for evidence in the tithing case could threaten its religious freedoms, labeling it a version of legal “trolling” preempted by legal precedent and the U.S. Constitution. In addition to trying to block discovery, church lawyers have called the new suit “a sprawling class action against a worldwide religious organization” filed by “a handful of dissenters.”

As nonbelievers, church attorneys maintain, the plaintiffs are likely to lack the legal standing to represent millions of active Latter-day Saints in a class action over tithing, saying they “offer no reason why millions of faithful tithe-paying church members would want any part in plaintiffs’ attack on the church.”

The plaintiffs’ lawyers have countered by calling those challenges “tangential attacks,” saying they don’t adequately support the church’s claims that discovery of evidence would be burdensome or prejudicial enough to legally justify Shelby putting it on hold.

This is a response to the parts of the Church's Motion to Stay dealing with the MDL plaintiffs being unable to get this lawsuit certify as a "class action" lawsuit.  This part of the MDL plaintiffs' opposing memorandum is, IMO, pretty weak.  They again fail to address the case law cited in the Church's Motion.  Again, failing to respond to cited case law is usually not a good sign.  This is because A) failing to rebut, in an opposing memorandum, case law cited in a motion is typically construed as a tacit concession that the opposing party cannot rebut it, and B) failing to otherwise distinguish or otherwise address case law cited in a motion can leave the Court unable (or unwilling) to do so.

Here is the MDL plaintiffs' response on this point:

Quote

First, LDS is not the sole Defendant. Ensign sits alongside it as a Defendant and is well-rooted in the secular world of money management. See Complaint ¶¶ 79-103. Where did its money arrive from, where was it kept, how did it come to be used to bail out a failing insurance business and build a shopping mall? See id. ¶¶ 105-112. Moreover, Plaintiffs do not limit their allegations to the tithes LDS solicited, but rather also the fast offerings and more general charitable donations.  

Second, even if Plaintiffs’ claims solely targeted LDS and tithes, its forthcoming motion to dismiss is unlikely to succeed. This Court had little difficulty finding the church autonomy doctrine inapplicable to a civil RICO claim based on allegations that share some facts set forth in the Complaint. Gaddy, 551 F. Supp. 3d at 1224-26.

The first point does not work well because EPA is an integrated auxiliary, and because trying to characterize the dispute as being entirely secular is, in my view, an increasingly strained argument. 

I think the second point fails because Gaddy was not a class action lawsuit.

Thanks,

-Smac

[Analytics]

3 hours ago, smac97 said:

I suspect that forcing the Church into discovery is one of the primary, if not the primary, objectives of the lawsuit.  I think the suit on its own merits has a very low chance of success.

Could you go into more detail about why this group of high-caliber attorneys would be engaging in this lawsuit if "forcing the Church into discovery" were their primary objective? I would think that with such people, making money is their primary objective. 

[bluebell]

13 minutes ago, Analytics said:

Could you go into more detail about why this group of high-caliber attorneys would be engaging in this lawsuit if "forcing the Church into discovery" were their primary objective? I would think that with such people, making money is their primary objective. 

They make more money if they win, but they still get paid if they lose, right?  

I think the primary objective of the person who has initiated the suit is likely what Smac was talking about though.  The lawyers aren't suing the church, they are representing their people who are.  It's the client's objective that is in question.  

[smac97]

2 hours ago, Analytics said:

Quote

I suspect that forcing the Church into discovery is one of the primary, if not the primary, objectives of the lawsuit.  I think the suit on its own merits has a very low chance of success.

Could you go into more detail about why this group of high-caliber attorneys would be engaging in this lawsuit if "forcing the Church into discovery" were their primary objective?

Because they think the Church might prefer to settle rather than go into discovery.  IIRC, Tim Kosnoff did this in Oregon some years back.

IOW, "this group of high-caliber attorneys" may view this lawsuit as a legally viable shakedown of the deep-pocketed Church.

2 hours ago, Analytics said:

I would think that with such people, making money is their primary objective. 

Making money by pursuing a lawsuit on its merits to judgment, and then collecting on that judgment is difficult.

Making money by pursuing a lawsuit against a deep-pocketed private institution that might prefer to settle rather than go into discovery is another, considerably easier option.

Thanks,

-Smac

[Kenngo1969]

I wonder if oral argument will be broadcast live on line.  I would be interested in watching.

[Robert F. Smith]

CPA Kim Pearson was quoted months ago saying that Church ranches and farms were for-profit entities.  How can this be true when the beef and produce are given away free with a bishop's food order for the storehouse.  Most of us have probably volunteered our time and energy at a storehouse, farm, or meat-packing operation.  These are not for-profit operations.

[Analytics]

14 hours ago, smac97 said:

Because they think the Church might prefer to settle rather than go into discovery.  IIRC, Tim Kosnoff did this in Oregon some years back.

IOW, "this group of high-caliber attorneys" may view this lawsuit as a legally viable shakedown of the deep-pocketed Church.

Making money by pursuing a lawsuit on its merits to judgment, and then collecting on that judgment is difficult.

Making money by pursuing a lawsuit against a deep-pocketed private institution that might prefer to settle rather than go into discovery is another, considerably easier option.

I would think deep-pocketed corporations would rather pay $20 million in legal fees rather than pay a $20 million settlement. Heck. I bet they’d prefer to spend $40 million in legal fees rather than pay a $20 million settlement. Why? Because if they fight it and go into discovery, they are punishing the plaintiffs for choosing to sue them; discovery is expensive for the plaintiffs, too. But if they just pay a settlement, they would be rewarding the plaintiffs for pursuing a “legally viable shakedown,” which would just invite more and more of it. As Kipling said, "if once you have paid him the Dane-geld, you never get rid of the Dane”.*

I can only think of two reasons why a corporation situated like the Church in this matter would agree to settle:

1. They think there is a real risk of losing big-time if the case continues.
2. There is an extremely vital secret that they can’t let go public in discovery; they can’t let the recipe for making Coca-Cola go public, or they can’t let the markets find out about secret negotiations about a merger, or they can’t let the public know about all of the sexual harassment complaints against the CEO.

Unless the Church still has some huge, incriminating thing that it is hiding from the membership (or from the IRS), I don’t think they have any motivation to reward these plaintiffs for suing them. And I think the plaintiffs' attorneys know this. I don’t think they are bluffing.

____________________________

*It’s worth quoting the whole poem, which is talking about why you should always fight the vikings and not pay them to leave you alone:

IT IS always a temptation to an armed and agile nation
   To call upon a neighbour and to say: –
"We invaded you last night – we are quite prepared to fight,
   Unless you pay us cash to go away."

And that is called asking for Dane-geld,
   And the people who ask it explain
That you've only to pay 'em the Dane-geld
   And then  you'll get rid of the Dane!

It is always a temptation for a rich and lazy nation,
   To puff and look important and to say: –
"Though we know we should defeat you,  we have not the time to meet you.
   We will therefore pay you cash to go away."

And that is called paying the Dane-geld;
   But we've  proved it again and  again,
That if once you have paid him the Dane-geld
   You never get rid of the Dane.

It is wrong to put temptation in the path of any nation,
   For fear they should succumb and go astray;
So when you are requested to pay up or be molested,
   You will find it better policy to say: --

"We never pay any-one Dane-geld,
   No matter how trifling the cost;
For the end of that game is oppression and shame,
   And the nation that plays it is lost!"
 

Edited August 28, 2024 by Analytics
Added poem to end

[Analytics]

17 hours ago, bluebell said:

They make more money if they win, but they still get paid if they lose, right?  

I think the primary objective of the person who has initiated the suit is likely what Smac was talking about though.  The lawyers aren't suing the church, they are representing their people who are.  It's the client's objective that is in question.  

No. I’m confident that the nine attorneys for the class action lawsuit are working on a contingent basis, e.g. “you don’t owe us anything unless we win!” They are after a percentage of a judgement or settlement in the 9 or 10 figures, not a few bucks for their hourly time.

[bluebell]

4 minutes ago, Analytics said:

No. I’m confident that the nine attorneys for the class action lawsuit are working on a contingent basis, e.g. “you don’t owe us anything unless we win!” They are after a percentage of a judgement or settlement in the 9 or 10 figures, not a few bucks for their hourly time.

So They have a really high interest in getting the church to settle then, right? Because it sounds like the lawsuit doesn’t really have much hope of producing a win if it actually goes to trial.

 

[Analytics]

1 hour ago, Robert F. Smith said:

CPA Kim Pearson was quoted months ago saying that Church ranches and farms were for-profit entities.  How can this be true when the beef and produce are given away free with a bishop's food order for the storehouse.  Most of us have probably volunteered our time and energy at a storehouse, farm, or meat-packing operation.  These are not for-profit operations.

I would estimate that about 99% of the Churches ranches and farms are simply businesses that grow corn and beef to be sold on the open market and are for-profit businesses in the same way that KSL, Deseret Book, and City Creek Mall are for-profit businesses. The Church doesn’t have the capacity to give away a fraction of the food it produces. Not even close.

[Analytics]

27 minutes ago, bluebell said:

So They have a really high interest in getting the church to settle then, right? Because it sounds like the lawsuit doesn’t really have much hope of producing a win if it actually goes to trial.

 

Of course they’d be willing to settle for the right price, but they aren’t in this hoping to have a quick-and-easy win for a couple million bucks to throw into the firm's bonus pool; they are after big money.

@smac97 doesn't think they have much hope of winning. But here is what I believe:

• The nine attorneys in the class action lawsuit include some big names that have won multiple cases worth billions of dollars each. This is the big leagues.
• Those guys aren’t interested in small settlements. They are after big money.
• The Church wouldn’t settle for any amount unless they saw a real chance of losing ("if once you have paid him the Dane-geld, you never get rid of the Dane.").
• The Church is taking this very seriously and has hired some Chicago attorneys who are charging the Church over $1,000 per hour to defend agains this.
• These plaintiffs wouldn’t waste their time pursuing this unless they saw a real chance of winning.

That’s how I see it. I can’t imagine the Church settling to avoid discovery. And I can’t imagine why the plaintiffs’ attorneys would be bluffing on that hope.

So I think the plaintiffs could win this if it went all the way. Definitely. 

 

Edited August 28, 2024 by Analytics

[bluebell]

17 minutes ago, Analytics said:

Of course they’d be willing to settle for the right price, but they aren’t in this hoping to have a quick-and-easy win for a couple million bucks to throw into the firm's bonus pool; they are after big money.

@smac97 doesn't think they have much hope of winning. But here is what I believe:

• The nine attorneys in the class action lawsuit include some big names that have won multiple cases worth billions of dollars each. This is the big leagues.
• Those guys aren’t interested in small settlements. They are after big money.
• The Church wouldn’t settle for any amount unless they saw a real chance of losing ("if once you have paid him the Dane-geld, you never get rid of the Dane.").
• The Church is taking this very seriously and has hired some Chicago attorneys who are charging the Church over $1,000 per hour to defend agains this.
• These plaintiffs wouldn’t waste their time pursuing this unless they saw a real chance of winning.

That’s how I see it. I can’t imagine the Church settling to avoid discovery. And I can’t imagine why the plaintiffs’ attorneys would be bluffing on that hope.

So I think the plaintiffs could win this if it went all the way. Definitely. 

 

I think there's room to agree to disagree on this.

If the church doesn't want to reveal their financials, and that is a requirement of the trial, then I think there is an excellent chance they will settle.  And I personally think the lawyers are planning for that.  They won't allow settlement unless they agree with the amount they are going to get, and something is better than nothing.

(I'm also guessing that some of these lawyers are getting paid already and not only working on contingency to win, especially since some of their clients are very wealthy, but I doubt we'll ever know for sure).

[Calm]

2 hours ago, Robert F. Smith said:

CPA Kim Pearson was quoted months ago saying that Church ranches and farms were for-profit entities.  How can this be true when the beef and produce are given away free with a bishop's food order for the storehouse.  Most of us have probably volunteered our time and energy at a storehouse, farm, or meat-packing operation.  These are not for-profit operations.

Robert, great to see you!  I can’t believe you haven’t posted since 2022.  I missed you. 

Edited August 28, 2024 by Calm

[Analytics]

11 minutes ago, bluebell said:

I think there's room to agree to disagree on this.

If the church doesn't want to reveal their financials, and that is a requirement of the trial, then I think there is an excellent chance they will settle.  And I personally think the lawyers are planning for that.  They won't allow settlement unless they agree with the amount they are going to get, and something is better than nothing.

I disagree, but won’t repeat my points.

Here’s one other consideration you might not be aware of. This is a class action case that purportedly has millions of class members. Settling such cases isn’t easy--they can’t settle unless the judge signs off on the settlement and agrees that all members of the class are being treated fairly; it isn’t a matter of paying off the attorneys to make it go away. All members of the class need to participate in the settlement or have the option to opt out of the class. Settling this might involve the Church sending a letter to every Church member who has paid tithing in the last 25 years and saying that as part of the settlement, they could opt-in to getting a full or partial refund of the tithing they’ve paid since 1995 or whenever. 

My point is that unlike an ambulance chaser looking for a quick and easy settlement in a personal injury lawsuit, there is no such thing as a quick and easy settlement in a class action case.

11 minutes ago, bluebell said:

(I'm also guessing that some of these lawyers are getting paid already and not only working on contingency to win, especially since some of their clients are very wealthy, but I doubt we'll ever know for sure).

I agree with you that James Huntsman’s lawyer was probably paid, but I don’t see how or why the attorneys on this class action case would be paid by the hour by the plaintiffs. After all, they represent a big class of people, not just one wealthy individual. 

[smac97]

3 hours ago, Analytics said:

Of course they’d be willing to settle for the right price, but they aren’t in this hoping to have a quick-and-easy win for a couple million bucks to throw into the firm's bonus pool; they are after big money.

Maybe.  

3 hours ago, Analytics said:

@smac97 doesn't think they have much hope of winning. But here is what I believe:

• The nine attorneys in the class action lawsuit include some big names that have won multiple cases worth billions of dollars each. This is the big leagues.

I suspect they also regularly settle cases.

They also are getting some free publicity.

That said, I suspect the Church will not settle this case.  It would set a bad precedent.

3 hours ago, Analytics said:

• Those guys aren’t interested in small settlements. They are after big money.

I think you are overstating things a bit as far as the significance of prominent attorneys being involved in a case.  Starstruck sentiments aside, the involvement of these attorneys is not, in my view, probative of the merits of the MDL plaintiffs' legal theories.

Your posture here is, in my view, akin to predicting that this or that movie will make a fortune because a famous and well-regarded actor is going to appear in it.  The Emoji Movie had Patrick Stewart in it.  Al Pacino was in Jack and Jill.  It doesn't mean much.

3 hours ago, Analytics said:

• The Church wouldn’t settle for any amount unless they saw a real chance of losing ("if once you have paid him the Dane-geld, you never get rid of the Dane.").

Not sure about that.  The Church attempted to settle the McKenna Denson case, and that case was a dumpster fire, with a loose canon plaintiff and a mediocre attorney representing her.  I suspect the Church knew it would win that case, but nevertheless attempted settlement for reasons other than the merits of the legal claims.  This happens all the time.

3 hours ago, Analytics said:

• The Church is taking this very seriously and has hired some Chicago attorneys who are charging the Church over $1,000 per hour to defend agains this.

That the Church is "taking this very seriously" is not evidence for the merits of the MDL plaintiffs' claims. Of course the Church is taking this lawsuit seriously.  It would be foolhardy to treat this lawsuit lightly.  And given the constitutional implications, it makes plenty of sense for the Church to bring in attorneys particularly and specifically well-versed in this kind of litigation.

3 hours ago, Analytics said:

• These plaintiffs wouldn’t waste their time pursuing this unless they saw a real chance of winning.

Too much mindreading here.  Subjective expectations like what you speculate about here are not good evidence of the merits of the MDL plaintiffs' claims. 

If I were to speculate, I'd spend more time on the pound-of-flesh dynamics likely in play.

3 hours ago, Analytics said:

That’s how I see it. I can’t imagine the Church settling to avoid discovery. And I can’t imagine why the plaintiffs’ attorneys would be bluffing on that hope.

So I think the plaintiffs could win this if it went all the way. Definitely. 

I don't know what "plaintiffs {definitely, as in 'without doubt'} could win" means.  "Could" and "definitely" seem to be at odds with each other. 

You seem to be trying to rhetorically push a possibility (which nobody is disputing, since even a .1% possibility of willing still fits within the parameters of "plaintiffs could win") into the category of probability.

Moreover, your assessment seems to be based mostly (entirely?) on you being starstruck with, and speculating about the motives of, the attorneys involved.  You have said nothing here about the legal merits.  In contrast, my assessment has been based on the merits and the applicable law.  A few examples gleaned from my previous posts on this subject:

• Fraud claims are difficult to plead (the plaintiffs much satisfy the "particularity" requirements of Rule 9(b) of the Federal Rules of Civil Procedure), let alone successfully prosecute.  This is a threshold issue, and the MDL lawsuit may well lose on this basis alone.
• Winning on fraud claims requires evidence of all nine elements of fraud, one of which is actual reliance.  I suspect most or all of the plaintiffs were paying tithing well before the Church said anything about City Creek, and continued to pay tithing after these statements.  I think it will be difficult-to-impossible for them to demonstrate that their continued payment of tithes was based on their reliance on the Church's City Creek statements.
• As I noted previously, alleging and demonstrating the "reliance" element in a class action context may well be impossible.  See, e.g., Castano v. Am. Tobacco, 84 F.3d 734, 745 (5th Cir. 1996) (“[A] fraud class action cannot be certified when individual reliance will be an issue.”).
• Winning on fraud claims also requires a showing not only of reliance (on the putatively false statement), but that such reliance was reasonable.  The Church has, for many decades now, been pretty open that it "set{s} aside" a "fixed percentage of the income {} to build reserves."  The Church having made such public statements, I think the MDL plaintiffs will be hard pressed to show that they nevertheless were blindsided by the notion that the Church does not spend 100% of tithes/offerings.
• Winning on fraud claims also requires a showing of falsity (of the representation).  This only works if the Court radically re-defines "tithing" in ways alien to the Church's usage, and then imputes that definition onto the Church's public statements about City Creek.  Good luck with that.
• Winning on fraud claims also requires a showing of damages.  Again, I suspect most or all of the plaintiffs were paying tithing well before the Church said anything about City Creek, and continued to pay tithing after these statements.  The only damages they could so would be for tithes paid after the Church's statements, and I think they could only claim damages by arguing and proving - via clear and convincing evidence - that but for the Church's statements about City Creek they would not have continued to tithe after the Church's City Creek statements.  Good luck with that.
• Winning on fraud claims requires satisfying the clear and convincing standard of evidence as to all nine elements of fraud.  I think the likelihood of probative, admissible evidence of fraud existing at all is low-to-nonexistent, let alone existing in a quantum sufficient to meet this standard.
• The MDL plaintiffs face some pretty steep hurdles regarding their fiduciary duty theory, which appears to be integral to their case.  I don't think such a duty is in play.  Judge Shelby has previously determined “there is no legally cognizable general fiduciary duty between a church and its members.” Gaddy, 665 F.Supp.3d at 1291.
• The lawsuit is pending in federal court.  For some years now, the pleading standard for federal cases has been based on two cases, Twombly and Iqbal.  A friend of mine and I wrote an article about this some years ago:  Twombly and Iqbal: How the Supreme Court has Radically Redefined Access to the Federal Courts.  These decisions created a "plausibility" pleading standard, a markedly stricter pleading standard than is used in many state courts (and previously used in federal courts), with the net effect making it substantially more difficult for plaintiffs to survive such motions at the outset of the case.  According to this article, "Twombly and Iqbal have negatively affected plaintiffs in at least 15% to 21% of cases that faced Rule 12(b)(6) motions in the post-Iqbal data window."  This amounts to a double whammy, as the MDL plaintiffs' fraud claims (which may well include all of their claims, as they all appear to "sound in fraud") must not only satisfy the heightened "pleading with particularity" requirements of Rule 9(b), they must do so within the heightened federal pleading standard under Twombly/Iqbal. 
• The Ecclesiastical Abstention / Church Autonomy Doctrine is, in my view, a huge obstacle to the MDL plaintiffs' claims.
• I am not very well-versed in class action litigation, but I suspect that getting this case certified is going to be very difficult.

To paraphrase Twelve Angry Men:

Juror #8 / Analytics: "It's possible {that the MDL plaintiffs will be able to

• (1) plead their fraud-based claims with the particularly required under Rule 9(b), and 
• (2) satisfy the Twombly/Iqbal "plausibility standard," and
• (3) establish individual reliance in a class action context, and
• (4) get their "fiduciary duty" theory past the very same judge who recently held that “there is no legally cognizable general fiduciary duty between a church and its members,” and
• (5) show a viable path toward class action certification, and
• (6) persuade the judge that their claims are not barred by the Ecclesiastical Abstention / Church Autonomy Doctrine, and
• (7) do all of these things at the front end of their lawsuit.}"

Juror #3 / Smac97: "But not very probable."

Thanks,

-Smac

 

Edited August 28, 2024 by smac97

[smac97]

6 hours ago, bluebell said:

Quote

No. I’m confident that the nine attorneys for the class action lawsuit are working on a contingent basis, e.g. “you don’t owe us anything unless we win!” They are after a percentage of a judgement or settlement in the 9 or 10 figures, not a few bucks for their hourly time.

So They have a really high interest in getting the church to settle then, right?

Assuming a contingency fee arrangement, yes.  But I'm not confident of that.  These attorneys likely recognize that the Church may not see settlement as a viable option, as it may set a bad precedent (disgruntled former members sue the Church, make a public stink about it, get a settlement check).  The constitutional ramifications may also move the Church away from settlement options.

6 hours ago, bluebell said:

Because it sounds like the lawsuit doesn’t really have much hope of producing a win if it actually goes to trial.

That is my assessment.

If the MDL plaintiffs can get to discovery, then the Church may still have options in terms of keeping its finances from public disclosure.  There are legal mechanisms for that in place.  And while the individual plaintiffs may want, on pound-of-flesh grounds, to see and publicize this information, the information may well only be made available to the attorneys (who would face serious consequences for breaching nondisclosure instructions from the court).

So it may be that the Church isn't as backed up against a wall as some think.

The more I look at this, the less inclined I am to see it as a likely referendum or test case on the ambit of the Ecclesiastical Abstention Doctrine.  The plaintiffs' factual basis and legal theories have so many flaws and holes in them that I wonder if the judge will even reach that doctrine, let alone plow new ground regarding it.

Thanks,

-Smac

Edited August 28, 2024 by smac97

[Analytics]

 

5 hours ago, smac97 said:

That said, I suspect the Church will not settle this case.  It would set a bad precedent.

I agree. And I think the plaintiff’s attorneys understand that as well.

5 hours ago, smac97 said:

I think you are overstating things a bit as far as the significance of prominent attorneys being involved in a case.  Starstruck sentiments aside, the involvement of these attorneys is not, in my view, probative of the merits of the MDL plaintiffs' legal theories.

It isn’t a matter of being starstruck. It’s a matter of understanding how these guys look at these cases. They know that they would need to invest significant resources and their reputation over the course of years before any hope of seeing any money. That being the case, we can be confident that they must have done some analysis of the cost, risk, and potential benefits. And the fact that this is proceeding leads me to believe that their analysis indicates that they think their chances of victory are high enough to make this worthwhile for them.

Their analysis could be flawed. Sure. Or maybe they are whale hunting and know they’ll probably lose, but the upside is so enormous they concluded it’s worth the risk.

5 hours ago, smac97 said:

Too much mindreading here.  Subjective expectations like what you speculate about here are not good evidence of the merits of the MDL plaintiffs' claims. 

If I were to speculate, I'd spend more time on the pound-of-flesh dynamics likely in play.

Mind-reading for thee but not for me? In any case, why would attorneys take on a class action lawsuit on a contingency basis “for a pound of flesh”?

5 hours ago, smac97 said:

I don't know what "plaintiffs {definitely, as in 'without doubt'} could win" means.  "Could" and "definitely" seem to be at odds with each other. 

You seem to be trying to rhetorically push a possibility (which nobody is disputing, since even a .1% possibility of willing still fits within the parameters of "plaintiffs could win") into the category of probability.

As a simplistic example, say the plaintiff’s attorneys thought they had a 0.1% chance of winning, and if they won they would get a $100 million payout, just in compensation for the legal team. That would mean that on average, they’d need to work on 1,000 of such cases to win just one. On average, they’d make $100,000, split between 9 lawyers, for each of these cases they worked on. Would they really waste their time if they thought their odds were that low?

I don’t think they would. I would guess they think their chances of winning are at least 10%. Probably much more. If they didn’t, they wouldn’t be wasting their time.

My analysis doesn’t address the legal merits of the case, but that doesn’t mean my actual point is invalid. This is their game and judging by their track record, they are very good at it. If you think the odds of them winning are in the neighborhood of 0.1%, you might want to consider whether or not you understand what’s going on.

 

Edited August 28, 2024 by Analytics

[Rain]

8 hours ago, Analytics said:

I disagree, but won’t repeat my points.

Here’s one other consideration you might not be aware of. This is a class action case that purportedly has millions of class members.

Millions? Where does that come from? 

8 hours ago, Analytics said:

Settling such cases isn’t easy--they can’t settle unless the judge signs off on the settlement and agrees that all members of the class are being treated fairly; it isn’t a matter of paying off the attorneys to make it go away. All members of the class need to participate in the settlement or have the option to opt out of the class. Settling this might involve the Church sending a letter to every Church member who has paid tithing in the last 25 years and saying that as part of the settlement, they could opt-in to getting a full or partial refund of the tithing they’ve paid since 1995 or whenever. 

My point is that unlike an ambulance chaser looking for a quick and easy settlement in a personal injury lawsuit, there is no such thing as a quick and easy settlement in a class action case.

I agree with you that James Huntsman’s lawyer was probably paid, but I don’t see how or why the attorneys on this class action case would be paid by the hour by the plaintiffs. After all, they represent a big class of people, not just one wealthy individual. 

 

[smac97]

1 hour ago, Analytics said:

 

I agree. And I think the plaintiff’s attorneys understand that as well.

It isn’t a matter of being starstruck. It’s a matter of understanding how these guys look at these cases. They know that they would need to invest significant resources and their reputation over the course of years before any hope of seeing any money. That being the case, we can be confident that they must have done some analysis of the cost, risk, and potential benefits. And the fact that this is proceeding leads me to believe that their analysis indicates that they think their chances of victory are high enough to make this worthwhile for them.

Their analysis could be flawed. Sure. Or maybe they are whale hunting and know they’ll probably lose, but the upside is so enormous they concluded it’s worth the risk.

Mind-reading for thee but not for me? In any case, why would attorneys take on a class action lawsuit on a contingency basis “for a pound of flesh”?

As a simplistic example, say the plaintiff’s attorneys thought they had a 0.1% chance of winning, and if they won they would get a $100 million payout, just in compensation for the legal team. That would mean that on average, they’d need to work on 1,000 of such cases to win just one. On average, they’d make $100,000, split between 9 lawyers, for each of these cases they worked on. Would they really waste their time if they thought their odds were that low?

I don’t think they would. I would guess they think their chances of winning are at least 10%. Probably much more. If they didn’t, they wouldn’t be wasting their time.

My analysis doesn’t address the legal merits of the case, but that doesn’t mean my actual point is invalid. This is their game and judging by their track record, they are very good at it. If you think the odds of them winning are in the neighborhood of 0.1%, you might want to consider whether or not you understand what’s going on.

You continue to be starstruck and bedazzled (as further demonstrated with stuff like "This is their game and judging by their track record, they are very good at it.").  Big-name attorneys are involved, ergo the MDL plaintiffs' legal case has merit.  That's not a very good metric.

A far better metric for evaluating the merits of a legal case is to look at the substantive law.  I am doing that.  You are not.

My reference to .1% was exemplary, that's all.  I was not suggesting that this is the percentage likelihood of success I am attributing to the MDL plaintiffs.

And again, the big-name attorneys are getting big - and free - publicity.  

Thanks,

-Smac