Update on Huntsman Lawsuit: Ninth Circuit Reverses Trial Court

[Okrahomer]

On 9/12/2024 at 7:26 AM, Analytics said:

As a reference, the Church claims it gives away about a billion dollars every year in humanitarian causes, and it appears that fast offerings are counted as part of that.

Are you sure about fast offerings being included?

I tried to find something to verify or support this idea one way or the other.  I wasn’t successful, but maybe you have a source?

Just for fun, I asked your favorite non-biased source — ChatGPT:  

“Does the LDS Church include fast offerings in the annual humanitarian giving report?”

According ChatGPT:  

“The LDS Church (The Church of Jesus Christ of Latter-day Saints) does not typically include fast offerings in its annual humanitarian giving report. The humanitarian report focuses on global charitable work and relief efforts, such as disaster relief, clean water initiatives, refugee support, and other international humanitarian projects.”

“Fast offerings, on the other hand, are donations made by members of the Church to assist those in need at the local level, often providing food, shelter, and other necessities to individuals within the Church's own congregations. These offerings are generally managed separately by local Church leaders and used for welfare purposes.”

“The annual humanitarian report is more focused on large-scale, international efforts, whereas fast offerings are considered part of the Church's welfare program and serve more localized needs.”

[Analytics]

9 hours ago, Okrahomer said:

Are you sure about fast offerings being included?

I tried to find something to verify or support this idea one way or the other.  I wasn’t successful, but maybe you have a source?

The more than $1 billion expended to help care for those in need went toward fast-offering assistance, humanitarian aid, goods distributed from bishops’ storehouses and Deseret Industries stores, and operations such as Family Services counseling, employment centers, farms and food-processing facilities…

https://newsroom.churchofjesuschrist.org/article/2022-annual-report-caring-for-those-in-need

[Okrahomer]

18 minutes ago, Analytics said:

The more than $1 billion expended to help care for those in need went toward fast-offering assistance

Thank you!  I should have known better than to rely on ChatGPT.

[Kenngo1969]

The "nice" thing about ChatGPT is that if it can't find the answer you're looking for, it just makes %$!@! up.    

[JAHS]

10 hours ago, Okrahomer said:

Thank you!  I should have known better than to rely on ChatGPT.

Then also there's that statement at the bottom of all donation slips

So all funds donated could be used for any purpose the church decides on, regardless of what category is selected.

[smac97]

On 8/29/2024 at 6:39 AM, Analytics said:

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It is when you present "their expertise in this type of lawsuit" as evidence that the MDL plaintiffs' complaint has merit.

I didn’t present that as legal evidence.

You:

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{Smac97:} 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. 

In responding to my comment about the suit lacking merit, you pointed to "this group of high-caliber attorneys," of their primary objective being "making money."  And they only make money if the suit it meritorious.  Ipso facto, their participation in the lawsuit is, to you, evidence that they intend to make money, and hence that the lawsuit has merit.

IOW, you sure look like you are pointing to the lawyers' involvement as evidence of the case having merit.

That said, I am happy to be corrected. You have previously said: "I think the plaintiffs could win this if it went all the way. Definitely."  If this assessment of the merits of the MDL plaintiff's claims is not based on the notoriety of the attorneys representing the MDL plaintiffs, then what is the basis for this assessment?

You:

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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.

Again, you point to attorneys being involved, and to their expectation to get paid, as indicia of the lawsuit's merit.

You:

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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. 

Here you are perhaps the most explicit in drawing an evidentiary bridge between the big-name lawyers being involved and the merits of the lawsuit.

Again, I am looking at the factual and legal substance of the claims when evaluating the merits of the lawsuit, whereas you keep focusing on the notoriety of the attorneys involved when evaluating the merits of the lawsuit.

You: 

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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.

Here you go again.  Big-name attorneys have signed on to participate in the representation of the MDL plaintiffs' lawsuit, ergo the MDL plaintiffs' lawsuit has merit.  This is a poor metric.  It is better to look at the facts and the applicable law, and extrapolate from there.  This is particularly so where, as here, the "facts" are not really in dispute, in which case the legal principles come to predominate.  And the legal principles at hand here seem to create some fairly substantial impediments to the MDL plaintiffs' prospects for success.

That an attorney's name appears alongside several other attorneys above the caption of the filed documents provides little reliable data as to how much that attorney is actually involved in the case.

Thanks,

-Smac

 

Edited September 16, 2024 by smac97

[Analytics]

18 hours ago, smac97 said:

In responding to my comment about the suit lacking merit, you pointed to "this group of high-caliber attorneys," of their primary objective being "making money."  And they only make money if the suit it meritorious.  Ipso facto, their participation in the lawsuit is, to you, evidence that they intend to make money, and hence that the lawsuit has merit.

IOW, you sure look like you are pointing to the lawyers' involvement as evidence of the case having merit.

Look at this from the perspective of a layman. Say I felt I was wronged, so I went to an attorney. After explaining to him my situation he does some research and then comes back and tells me, “I think your case has merit. I’m going to take this case on a contingency basis, and here is everything I’m going to invest into this case. If we win, my fee will be 30% of the settlement or judgment. If we lose, you pay nothing."

If I then told you I think my case has merit because my attorney told me it did, would you belittle me for believing my attorney? 

18 hours ago, smac97 said:

Here you go again.  Big-name attorneys have signed on to participate in the representation of the MDL plaintiffs' lawsuit, ergo the MDL plaintiffs' lawsuit has merit.

If you think big-name attorneys would invest their time, their own resources, and their reputations pursuing cases that they don’t believe have merit, you are free to believe that. 

[smac97]

6 hours ago, Analytics said:

Look at this from the perspective of a layman.

Thanks, but no.  When it comes to evaluating the merits of a lawsuit, I think it is better to look at the case from an informed and reasoned perspective.  This is particularly so where, as here, we have spent some years and dozens (hundreds?) of posts examining the factual underpinnings of the MDL lawsuits, as well as the relevant legal principles and arguments. 

I have gone to some appreciable length to move beyond abstractions and partisan, ***-for-tat repartee, and to instead focus on the actual lawsuit.  I have downloaded many of the actual legal filings, saved them to my Google Drive, and then provided links for readers to download these documents and read them for themselves.  I have also surveyed these filings and provided fairly extensive commentary on them.  I have also researched the substantive law and cited and applied and explained relevant decisional and statutory authorities, which is what Judge Shelby is going to do.  I have also critiqued each side's legal arguments and citations.  I have attempted to do these things in a fairly impartial way (while at the same time acknowledging my bias in favor of the Church).  

I have done most of this stuff for my own sake because I often take a personal interest in litigation involving the Church of Jesus Christ of Latter-day Saints.  I have posted my assessments on this board A) to stimulate more informed discussion and awareness of the legal matters, and B) to listen to perspectives of intelligent people who, though not necessarily trained in the law, can often provide insights, perspectives, counterbalancing ideas, etc. which are useful to temper my views and assessments.

You are obviously a very intelligent fellow, a point I have acknowledged many times and do again here.  Having laid the groundwork for a discussion of the law which is more substantive and informed than is otherwise possible with "laymen," I think we should make use of that groundwork.

6 hours ago, Analytics said:

Say I felt I was wronged, so I went to an attorney. After explaining to him my situation he does some research and then comes back and tells me, “I think your case has merit. I’m going to take this case on a contingency basis, and here is everything I’m going to invest into this case. If we win, my fee will be 30% of the settlement or judgment. If we lose, you pay nothing."

If I then told you I think my case has merit because my attorney told me it did, would you belittle me for believing my attorney? 

I am not belittling you, and I apologize for giving that impression.  I am, instead, asking that we examine the merits of the MDL lawsuit in ways better than because-my-attorney-said-so or a-big-name-lawyer-is-involved-so-the-case-must-have-merit style approaches.

6 hours ago, Analytics said:

If you think big-name attorneys would invest their time, their own resources, and their reputations pursuing cases that they don’t believe have merit, you are free to believe that. 

There is no way to know for sure how much "time" or "resources" these "big-name attorneys" have "invest{ed}" in this lawsuit. 

It is quite common for a prominent attorney to allow his/her name to be listed alongside the names of the attorneys who are doing the actual work. This can be done to bolster the credibility of the lawsuit in the eyes of people not particularly well-versed in the law (as, I think, is being demonstrated in this thread).

It is also quite common for a prominent attorney to give some guidance on this or that aspect of a case, but otherwise not do much with it because the other, less-well-known attorneys are doing the heavy lifting.

It is also quite common for these sorts of cases to die on the vine, and in ways that create little or no injury to a prominent attorney's "reputation."  As I have noted previously, sensationalized litigation tends to garner all sorts of attention at the outset, but considerably less publicity when and if they are dismissed.

Alternatively, a "big-name" attorney may be at the forefront of a lawsuit, developing strategy, drafting important briefs, appearing at important hearings, etc.  

In the present case, my surmise is that the local, Utah-based attorneys (James Magleby and Yevgen Kovalov) are doing the heavy lifting (Magleby seems to be signing most of the briefs, though this is a recollection only).  This is based on the quality of the legal briefs submitted by the MDL plaintiffs.  I find these briefs to be good, but not great.  They sidestep too many substantive points of law, and the writing often has elements of appeals to emotion, at the expense of a clinical examination of the law.

In contrast, I think the Church's briefs are giving off a pretty strong "the Church is really getting its money's worth" sort of vibe.  The quality of the writing is, in my view, top notch. I don't know that it could be approved upon.  Also, I note that Mark Mester signed all three of the Church's recently-filed dispositive motions.  Mr. Mester is a partner at Latham & Watkins with extensive experience in class action litigation.  I suspect he has far more fingerprints on the Church's briefs as compared to the "big name" attorneys representing the MDL plaintiffs.

In the end, though, it is the substance of the legal arguments and reasoning that I find to be the best indicator of merit.  Much more so than the notoriety of the individual attorneys involved.

-Smac

Edited September 17, 2024 by smac97

[Analytics]

On 8/28/2024 at 10:06 PM, smac97 said:

Broadly speaking, I'm not particularly interested [in Analytics's thoughts on the substantive law]

 

4 hours ago, smac97 said:

...Having laid the groundwork for a discussion of the law which is more substantive and informed than is otherwise possible with "laymen," I think we should make use of that groundwork.

...I am, instead, asking that we examine the merits of the MDL lawsuit in ways better than because-my-attorney-said-so or a-big-name-lawyer-is-involved-so-the-case-must-have-merit style approaches.

So, it sounds like you really are interested in my opinions on the matter. Since you asked...

I’ve read the comments you’ve posted here, and I’ve read most of the Church’s three latest motions. It’s a lot of material, and my general reaction is curiosity about what, specifically, the plaintiffs are going to say. That said, here is my opinion on what’s most salient to me.

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.

It’s been clear to me that the Church has been hoarding  excessively saving way, way, way too much money. However, if any of the plaintiffs had any concerns about this over the years, they could have started a thread about it here and I would have told them the truth; it’s been obvious to me for years. However, if they would have done so, many faithful members of this board would have argued 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.” That is precisely what many faithful Latter-day Saints who were engaged with these issues believed before the whistleblower report. The members who thought that way were wrong, and I can understand why they would feel deceived. But does that level and type of deception rise to the level of legal fraud? I would think probably not, but I’m looking forward to hearing the plaintoffs response to Section 3.B. of the first motion.

In the first paragraph of the Church’s first motion to dismiss, the lawyers quote from the D&C three times, and quote from Teachings of Presidents of the Church: Joseph Smith once. The rest of the introduction is overflowing with religious quotes from Joseph Smith, Hinckley, Nelson, the D&C, and the Bible. I found this gratuitous use of scripture and religious teachings to be irrelevant, but I also found it to be an admirably strategic way to illustrate their claim that this as a purely religious dispute that is outside the purview of the law. This seems to be both the Church’s most important argument but also its weakest. On this specific point, they are essentially arguing that if a church has a doctrine or polity to defraud members, then the church autonomy doctrine grants it license to do so. They claim that this is a religious dispute, but the plaintiffs adamantly argue that it is not. Who is right? That is the big fact that needs to be sorted out. And even if it is a “religious dispute”, what are the bounds of protection that the church autonomy doctrine provides? What are the limits? I have no idea, but there must be limits.

Furthermore, for purposes of applying these rules, what qualifies as a “church” in the first place? It is a fair question to ask at what point will the Church cease being primarily a church. The Widow’s Mite estimated that in 2023, the Church used 19% of its annual income on religious, educational, and humanitarian things, and used the remaining 81% of its income to build the size of its for-profit business portfolio; based upon how it spends its annual income, it is 19% a religious and philanthropic organization, and 81% a hedge fund whose only objective is to grow the size of its investment portfolio for the sake of having more money. In general, if an organization’s primary objective is to accumulate money for the sole purpose of having it, is it really a “church” in the legal sense? I don’t know, but out of necessity, the law must delimit what organizations are entitled to protection under the church autonomy doctrine and which are not. Something that is a hedge fund can’t claim to be a church because they vaguely claim that they plan on using the money for something religious some day. So where is the line drawn?

They say on page 13:

Plaintiffs depart from any subtlety when they plead that the Church has used donations “in manners antithetical to the purported mission of” the Church. Consol. Compl. ¶ 132. This reeks of the “departure-from-doctrine” test the Supreme Court rejected in Presbyterian Church, 393 U.S. 442. Such claims “require the civil court to determine” whether a practice is antithetical to church doctrine.

I disagree. The issue isn’t whether the Church is being pure to its doctrine; the issue is whether the Church is fraudulently deceiving its membership about how donated funds are being deployed. 

On page 14 they say:

Fraud claims, however, evade church autonomy “only when the [alleged] misrepresentation is exclusively secular” and the claim is “not mixed with religious beliefs and claims.” V. Schwartz, et al., The Church Autonomy Doctrine, 80 U. Cin. L. Rev. 431, 468 (2011). A fraud claim must present a “purely secular” dispute and cannot be “rooted in religious belief.” Bryce, 289 F.3d at 657.

I hope the law doesn’t really say this. If what is otherwise blatant fraud has a tinge of religious belief associated with it, then it can’t legally be fraud? I hope that isn’t true.

The basic point of Section II. is that since it is religious in nature, the Church ought to be held not only to a really low standard ethically and morally, but also to a really low standard legally as well. Maybe they are right about this, but I hope they are wrong.

Outside of that one section, I think they make a lot of good points.

[smac97]

On 9/17/2024 at 5:34 PM, Analytics said:

So, it sounds like you really are interested in my opinions on the matter.

Yes, I am interested.  I am interested in a clinical assessment of the MDL plaintiffs' claims, and getting substantive input from people who, like you, aren't going to cut the Church any slack can be beneficial.  Plus, as I said, you are a smart guy.

On 9/17/2024 at 5:34 PM, Analytics said:

Since you asked...

I’ve read the comments you’ve posted here, and I’ve read most of the Church’s three latest motions. It’s a lot of material, and my general reaction is curiosity about what, specifically, the plaintiffs are going to say. That said, here is my opinion on what’s most salient to me.

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.

Sounds good.  I'll post links to their responses once they are filed and publicly available.

On 9/17/2024 at 5:34 PM, Analytics said:

It’s been clear to me that the Church has been hoarding  excessively saving way, way, way too much money. However, if any of the plaintiffs had any concerns about this over the years, they could have started a thread about it here and I would have told them the truth; it’s been obvious to me for years. However, if they would have done so, many faithful members of this board would have argued 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.” That is precisely what many faithful Latter-day Saints who were engaged with these issues believed before the whistleblower report. The members who thought that way were wrong, and I can understand why they would feel deceived. But does that level and type of deception rise to the level of legal fraud? I would think probably not, but I’m looking forward to hearing the plaintoffs response to Section 3.B. of the first motion.

None of this speaks to the merits of the plaintiffs' claims.

On 9/17/2024 at 5:34 PM, Analytics said:

In the first paragraph of the Church’s first motion to dismiss, the lawyers quote from the D&C three times, and quote from Teachings of Presidents of the Church: Joseph Smith once. The rest of the introduction is overflowing with religious quotes from Joseph Smith, Hinckley, Nelson, the D&C, and the Bible. I found this gratuitous use of scripture and religious teachings to be irrelevant, but I also found it to be an admirably strategic way to illustrate their claim that this as a purely religious dispute that is outside the purview of the law.

Well, pick one.  If this language frames the dispute as "purely religious" and "outside the purview of the law," then the language is neither "gratuitous" or "irrelevant."

On 9/17/2024 at 5:34 PM, Analytics said:

This seems to be both the Church’s most important argument but also its weakest.

I think the Ecclesiastical Abstention Doctrine is one of the more potent arguments.  And I think the Church's invocation of it is pretty strong.

On 9/17/2024 at 5:34 PM, Analytics said:

On this specific point, they are essentially arguing that if a church has a doctrine or polity to defraud members, then the church autonomy doctrine grants it license to do so.

This is not remotely accurate or fair.  The briefs say nothing like this.

On 9/17/2024 at 5:34 PM, Analytics said:

They claim that this is a religious dispute, but the plaintiffs adamantly argue that it is not. Who is right?

Judge Shelby will decide that.

On 9/17/2024 at 5:34 PM, Analytics said:

That is the big fact that needs to be sorted out. 

Actually, I think this is not a question of fact, but rather a question of law.  A factual question would generally not be resolved via a Motion to Dismiss, but legal questions are routinely resolved by such motions.

On 9/17/2024 at 5:34 PM, Analytics said:

And even if it is a “religious dispute”, what are the bounds of protection that the church autonomy doctrine provides? What are the limits? I have no idea, but there must be limits.

Well, we've covered this before.  Quite a few times, actually.  

On 9/17/2024 at 5:34 PM, Analytics said:

Furthermore, for purposes of applying these rules, what qualifies as a “church” in the first place? 

There is no dispute, none whatsoever, that the institution commonly known as The Church of Jesus Christ of Latter-day Saints is a "church" for the purposes of the Ecclesiastical Abstention Doctrine.  

On 9/17/2024 at 5:34 PM, Analytics said:

It is a fair question to ask at what point will the Church cease being primarily a church.

Well, no.  Judge Shelby will not be asking this question.  There are times when public policy considerations from 30,000 feet up in the air are implicated in a lawsuit, but that is pretty rare.  Judges typically resolve legal disputes based on what the law is, not what a litigant or bystander thinks it ought to be.  You keep veering into the latter, and it is materially impeding your ability to evaluate the merits of the MDL lawsuit.

On 9/17/2024 at 5:34 PM, Analytics said:

They say on page 13:

Plaintiffs depart from any subtlety when they plead that the Church has used donations “in manners antithetical to the purported mission of” the Church. Consol. Compl. ¶ 132. This reeks of the “departure-from-doctrine” test the Supreme Court rejected in Presbyterian Church, 393 U.S. 442. Such claims “require the civil court to determine” whether a practice is antithetical to church doctrine.

I disagree. The issue isn’t whether the Church is being pure to its doctrine; the issue is whether the Church is fraudulently deceiving its membership about how donated funds are being deployed. 

I don't think you are understanding the point here.  The MDL plaintiffs are telling the Court that the Church has used donations “in manners antithetical to the purported mission of” the Church.  It is therefore asking Judge Shelby to determine whether this is so, which means they are asking Judge Shelby to adjudicate the Church's doctrine and evaluate whether this or that expenditure is "antithetical" to it.  This sort of secular court inquiry is clearly prohibited by the Ecclesiastical Abstention Doctrine.  Judge Shelby can only evaluate fraud claims based on civil law.  Claims based on differences of opinion regarding the Church's doctrines our plainly out of bounds.

On 9/17/2024 at 5:34 PM, Analytics said:

On page 14 they say:

Fraud claims, however, evade church autonomy “only when the [alleged] misrepresentation is exclusively secular” and the claim is “not mixed with religious beliefs and claims.” V. Schwartz, et al., The Church Autonomy Doctrine, 80 U. Cin. L. Rev. 431, 468 (2011). A fraud claim must present a “purely secular” dispute and cannot be “rooted in religious belief.” Bryce, 289 F.3d at 657.

I hope the law doesn’t really say this.

The law really says this.  Again, we have been over this several times.

On 9/17/2024 at 5:34 PM, Analytics said:

If what is otherwise blatant fraud has a tinge of religious belief associated with it, then it can’t legally be fraud? I hope that isn’t true.

That is not a correct statement of the law.  We have been over this several times, as recently as February of this year, and before that in November 2022.

The Harmston case is a good example of how a fraud claim against a religious group can be something other than "exclusively secular":

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B. No Adjudication of Church Doctrine Necessary to Grant Relief

 ¶ 15 The trial court's second reason for denying Plaintiffs' motion to amend was that the Third Amended Complaint would require the fact finder to impermissibly judge the Church's religious doctrines.   Civil actions that “require the courts to review and interpret church law, policies, or practices in the determination of the[ir] claims are barred by the First Amendment under the entanglement doctrine.”  Franco v. The Church of Jesus Christ of Latter-day Saints, 2001 UT 25,¶ 15, 21 P.3d 198.

 ¶ 16 Here, 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.

 ¶ 17 “[C]hurches must have ‘power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.’ ”  Id. (quoting Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 116, 73 S.Ct. 143, 97 L.Ed. 120 (1952)).   But here, Plaintiffs' claims do not necessarily implicate the Church's government, faith, or doctrine.²  Rather, each of the claims stated in the Third Amended Complaint is supported by allegations of secular activity potentially amounting to violations of generally applicable civil law.   Cf. Employment Div. v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990) (upholding criminal laws of general applicability even though those laws interfere with sincerely held religious beliefs).   Accordingly, the trial court erred when it relied on the entanglement doctrine to deny Plaintiffs' motion to amend.
...
2.   This is not to say that every allegation in the Third Amended Complaint avoids conflict with the First Amendment.   For example, Plaintiffs' allegation that Hancock “never met Christ face to face as promised” appears to be an entirely religious matter beyond the courts' ability to adjudicate.

This is now the third time I have quoted Harmston on this board, and the second time quoting it directly to you.  Bolded stuff and all.

Do you see the difference between a fraud lawsuit based on (A) the plaintiffs "{giving} money to the Church in exchange for promises of future earthly benefits" such as "land and support" and "repayment of her retirement funds" versus (B) the plaintiffs having “never met Christ face to face as promised”?

Do you see how (A)-style claims "do not necessarily implicate the Church's government, faith, or doctrine"?

Do you see how (A)-style claims "{are} supported by allegations of secular activity potentially amounting to violations of generally applicable civil law"?

Do you also see how (B)-style claims do "necessarily implicate the Church's government, faith, or doctrine" and "{are not} supported by allegations of secular activity potentially amounting to violations of generally applicable civil law," since a promise to arrange a meeting with Jesus is "an entirely religious matter," and hence is "an entirely religious matter beyond the courts' ability to adjudicate"?

On 9/17/2024 at 5:34 PM, Analytics said:

The basic point of Section II. is that since it is religious in nature, the Church ought to be held not only to a really low standard ethically and morally, but also to a really low standard legally as well.  Maybe they are right about this, but I hope they are wrong.

This is not remotely accurate.  It is a substantial distortion of what the law says.  I suspect you keep doing this because you are letting your antipathy against the Church cloud your assessment of the law.

Moreover, it is wholly unjustified in the present context because the Church did nothing which can be reasonably characterized as corresponding to "a really low standard ethically and morally, but also to a really low standard legally as well."  Your comments here are just unserious and intended to provoke and offend.  The Church publicly announced that it was funding City Creek, and that tithing funds would not be used, and that the funding would come from other sources.  There is nothing unethical or immoral or illegal about this.  

On 9/17/2024 at 5:34 PM, Analytics said:

Outside of that one section, I think they make a lot of good points.

I concur with this conclusion.

Thanks,

-Smac

Edited December 24, 2024 by smac97

[Analytics]

8 hours ago, smac97 said:

Yes, I am interested.  I am interested in a clinical assessment of the MDL plaintiffs' claims, and getting substantive input from people who, like you, aren't going to cut the Church any slack can be beneficial.  Plus, as I said, you are a smart guy.

Sounds good.  I'll post links to their responses once they are filed and publicly available.

Thanks. I appreciate you providing these links, and I have been using them.

8 hours ago, smac97 said:

None of this speaks to the merits of the plaintiffs' claims.

Well, pick one.  If this language frames the dispute as "purely religious" and "outside the purview of the law," then the language is neither "gratuitous" or "irrelevant."

From my perspective, the plaintiff’s Causes of Action are not religious in nature.  Is the Church arguing that breaching fiduciary duties and engaging in fraudulent inducement, fraudulent concealment, fraudulent misrepresentation, and unjust enrichment are  all religious polities? If not, in what way are the actual complaints religious in nature? To me, the whole church autonomy doctrine angle is either:

• a claim that they have a license to commit what would otherwise be fraud had the same actions been committed without this protection, or
• an irrelevant red herring that is designed to mislead and distract the judge

That’s how it comes across to me. That’s because according to the plaintiffs, this is not about, in the words of Harmston, “matters of church government [or] faith and doctrine.” Rather, it is about things like whether the church complied with the Utah Charitable Solicitations Act, whether the Church “made false representations regarding contemporaneously existing material facts” regarding how donated funds would be deployed, and whether they deliberately concealed their intended uses of donated money. 

These accusations are essentially secular in nature, not religious. 

If you insist they are religious, that leads back to how I read the Church’s paragraphs on church autonomy doctrine; the church autonomy doctrine is a license to legally commit fraud.

As I understand it, the church autonomy doctrine does in fact grant the church the right to decide how it will deploy its own resources (and I don’t see anywhere where the plaintiffs dispute this). However, does it also grant churches the right to engage in an “orchestrated and illegal deception” against the members so that the membership wouldn’t “be in a position where [they] felt like, you know, they shouldn’t make a contribution.” (paragraphs 103-103 of complaint)? It seems like that is the Church’s argument here. If it’s not, what’s the point of evoking the church autonomy doctrine in the first place?

I said earlier, 

On this specific point, they are essentially arguing that if a church has a doctrine or polity to defraud members, then the church autonomy doctrine grants it license to do so.

8 hours ago, smac97 said:

This is not remotely accurate or fair.  The briefs say nothing like this.

Sure it does. Specifically the first brief says:

Fraud claims, however, evade church autonomy “only when the [alleged] misrepresentation is exclusively secular” and the claim is “not mixed with religious beliefs and claims.” V. Schwartz, et al., The Church Autonomy Doctrine, 80 U. Cin. L. Rev. 431, 468 (2011). A fraud claim must present a “purely secular” dispute and cannot be “rooted in religious belief.” Bryce, 289 F.3d at 657.

If a fraud claim is not about something that is “exclusively secular” and in some way is “mixed with religious beliefs and claims” , then the fraud is legal because of church autonomy. That is their argument. 

8 hours ago, smac97 said:

I don't think you are understanding the point here.  The MDL plaintiffs are telling the Court that the Church has used donations “in manners antithetical to the purported mission of” the Church.  It is therefore asking Judge Shelby to determine whether this is so, which means they are asking Judge Shelby to adjudicate the Church's doctrine and evaluate whether this or that expenditure is "antithetical" to it.  This sort of secular court inquiry is clearly prohibited by the Ecclesiastical Abstention Doctrine...

I know that is what the defendant’s are arguing, but the problem is that they are responding to a straw man and not to the actual complaint. If you go back to paragraph 132 of the complaint where this was quoted from, in context it says:

Plaintiffs did not believe and had no reason to ever suspect that LDS would take any portion of their donations and invest it into Ensign, where it would sit and accumulate interest in perpetuity and otherwise be used in manners antithetical to the purported mission of LDS and Ensign. And even if Plaintiffs had any suspicions that LDS was engaging in any such practice, they never could have discovered it.

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.

If the doctrine of the Church is that most revenue should be used to build up the for-profit business empire, then it is their prerogative to use the revenue that way. But how does church autonomy give churches the right to fraudulently mislead members about how funds will be used? That is the issue.

8 hours ago, smac97 said:

Judge Shelby can only evaluate fraud claims based on civil law.  Claims based on differences of opinion regarding the Church's doctrines our plainly out of bounds.

I agree. Of course.

8 hours ago, smac97 said:

That is not a correct statement of the law.  We have been over this several times, as recently as February of this year, and before that in November 2022.

The Harmston case is a good example of how a fraud claim against a religious group can be something other than "exclusively secular":

This is now the third time I have quoted Harmston on this board, and the second time quoting it directly to you.  Bolded stuff and all.

Do you see the difference between a fraud lawsuit based on (A) the plaintiffs "{giving} money to the Church in exchange for promises of future earthly benefits" such as "land and support" and "repayment of her retirement funds" versus (B) the plaintiffs having “never met Christ face to face as promised”?

Do you see how (A)-style claims "do not necessarily implicate the Church's government, faith, or doctrine"?

Do you see how (A)-style claims "{are} supported by allegations of secular activity potentially amounting to violations of generally applicable civil law"?

Do you also see how (B)-style claims do "necessarily implicate the Church's government, faith, or doctrine" and "{are not} supported by allegations of secular activity potentially amounting to violations of generally applicable civil law," since a promise to arrange a meeting with Jesus is "an entirely religious matter," and hence is "an entirely religious matter beyond the courts' ability to adjudicate"?

Sure. I understand the Harmston case well enough. The problem is that when viewed through the Harmston paradigm, the 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.

Am I wrong about that? The way I read the complaint is that the reason the Church was being deceptive to the SEC about the assets it controls was to further its objective of being deceptive to the donors, because if the donors knew the details about how the money was really being allocated, many of them would stop donating. Again quoting Roger Clarke, “they never wanted to be in a position where people felt like, you know, they shouldn’t make a contribution." 

How is it ethical to conceal information and deliberately mislead people so that they will make donations they wouldn’t make if they knew the truth?

And how does the church autonomy doctrine relate to the actual complaint rather than the Church’s misrepresentation of it?

8 hours ago, smac97 said:

Moreover, it is wholly unjustified in the present context because the Church did nothing which can be reasonably characterized as corresponding to "a really low standard ethically and morally, but also to a really low standard legally as well." 

Sure it has. I’ve lectured you about how transparency is an issue of ethics and morality, with numerous references, ad nauseam. And part of its scheme of being unethically opaque was how it went to great and expensive lengths to create bogus clone LCC’s with fake addresses all across the country that served no purpose whatsoever other than to further its scheme of being financially opaque to donors and potential donors. And it deliberately filed SEC forms with false statements in order to perpetuate this opaqueness. 

All of those are low standards of ethics, and now the plaintiffs are accusing it of “illegal deception.” And the Church’s response?

Lying to the membership about how funds are spent is an internal matter that is religious in nature, and thus is protected by the Church Autonomy Doctrine. 

Edited September 18, 2024 by Analytics

[Stargazer]

On 9/12/2024 at 7:11 PM, Calm said:

Why bring these up if not mentioned by plaintiffs?  Or does “fail to state” mean “fail to provide” here meaning a claim was made, but not supported by anything?

I'm not sure if Spencer addressed the "fail to state" adequately. Not that I am a lawyer, but...

"Failure to state a claim" is frequently shorthand meaning "Failure to state a claim for which relief can be granted."

If the court can't do anything to help you, even if your claim is valid, then no relief can be granted, and the case should be dismissed.

Reasons why relief couldn't be granted include such things as

• the statute of limitations has been exceeded (e.g. the statute of limitations requires that you sue within 180 days after realizing that you have a case, but you filed the suit 181 days afterwards)
• the court can't do the thing you want done, even assuming you won

 

[smac97]

41 minutes ago, Analytics said:

From my perspective, the plaintiff’s Causes of Action are not religious in nature.  

I think you would have a hard time persuading Judge Shelby of that.  As you noted previously:

Quote

They say on page 13:

Plaintiffs depart from any subtlety when they plead that the Church has used donations “in manners antithetical to the purported mission of” the Church. Consol. Compl. ¶ 132. This reeks of the “departure-from-doctrine” test the Supreme Court rejected in Presbyterian Church, 393 U.S. 442. Such claims “require the civil court to determine” whether a practice is antithetical to church doctrine.

Their claims are about religion-motivated donations (tithes) to the Church, the religious missions of the Church, and whether the Church's funding of City Creek was "antithetical" to these missions.  And this is, for you, not about legal claims that are "religious in nature"?

41 minutes ago, Analytics said:

Is the Church arguing that breaching fiduciary duties and engaging in fraudulent inducement, fraudulent concealment, fraudulent misrepresentation, and unjust enrichment are all religious polities?

No.  The Church is arguing that its receipt and use of tithes a plainly matters of religious belief, doctrine, government, etc.

41 minutes ago, Analytics said:

If not, in what way are the actual complaints religious in nature?

Again, we have been over and over this.  The MDL plaintiffs object to the Church's use of funds, which they say are "antithetical" to the Church's religious mission.  This is nothing but a religious dispute.

Again, look at Harmston.

41 minutes ago, Analytics said:

To me, the whole church autonomy doctrine angle is either:

• a claim that they have a license to commit what would otherwise be fraud had the same actions been committed without this protection, or
• an irrelevant red herring that is designed to mislead and distract the judge

That’s how it comes across to me.

You persist in assessing the lawsuit based on religious antipathy and what you think the law ought to be (rather than what it is).  These don't work.

41 minutes ago, Analytics said:

That’s because according to the plaintiffs, this is not about, in the words of Harmston, “matters of church government [or] faith and doctrine.”

The plaintiffs' self-serving say-so doesn't mean much.

We'll see what Judge Shelby says.

41 minutes ago, Analytics said:

Rather, it is about things like whether the church complied with the Utah Charitable Solicitations Act,

A statute that only applies if the law imposes a fiduciary duty on the Church and owed to donors.  That is not the state of the law.

41 minutes ago, Analytics said:

whether the Church “made false representations regarding contemporaneously existing material facts” regarding how donated funds would be deployed,

A theory that only works if Judge Shelby radically re-defines "tithes" to mean both "one tenth of one's increase annually" and also any revenue generated from the Church's investment of those donations).  I really don't think this will happen.

Moreover, the factual assertions are untenable on their face.  The Church said that tithes would not be used to fund City Creek.  Tithes were not used to fund City Creek.

41 minutes ago, Analytics said:

and whether they deliberately concealed their intended uses of donated money. 

Huh?

41 minutes ago, Analytics said:

These accusations are essentially secular in nature, not religious. 

These accusations all center on matters of church governance, which are essentially religious in nature, not secular.

41 minutes ago, Analytics said:

If you insist they are religious, that leads back to how I read the Church’s paragraphs on church autonomy doctrine; the church autonomy doctrine is a license to legally commit fraud.

Nonsense.  That is not what the law says.

41 minutes ago, Analytics said:

As I understand it, the church autonomy doctrine does in fact grant the church the right to decide how it will deploy its own resources (and I don’t see anywhere where the plaintiffs dispute this).

Um, what?

Quote

They say on page 13:

Plaintiffs depart from any subtlety when they plead that the Church has used donations “in manners antithetical to the purported mission of” the Church. Consol. Compl. ¶ 132. This reeks of the “departure-from-doctrine” test the Supreme Court rejected in Presbyterian Church, 393 U.S. 442. Such claims “require the civil court to determine” whether a practice is antithetical to church doctrine.

This is the plaintiffs not disputing how the Church "deploy{s} its own resources"?

41 minutes ago, Analytics said:

However, does it also grant churches the right to engage in an “orchestrated and illegal deception” against the members so that the membership wouldn’t “be in a position where [they] felt like, you know, they shouldn’t make a contribution.” (paragraphs 103-103 of complaint)?

This is getting tedious.  Nobody is suggesting that the Church has any such "right."

41 minutes ago, Analytics said:

It seems like that is the Church’s argument here.

This is nothing like the Church's argument.  At all.  Not even a little bit.

41 minutes ago, Analytics said:

If it’s not, what’s the point of evoking the church autonomy doctrine in the first place?

We've been over this.

41 minutes ago, Analytics said:

I said earlier, 

On this specific point, they are essentially arguing that if a church has a doctrine or polity to defraud members, then the church autonomy doctrine grants it license to do so.

Sure it does. Specifically the first brief says:

Fraud claims, however, evade church autonomy “only when the [alleged] misrepresentation is exclusively secular” and the claim is “not mixed with religious beliefs and claims.” V. Schwartz, et al., The Church Autonomy Doctrine, 80 U. Cin. L. Rev. 431, 468 (2011). A fraud claim must present a “purely secular” dispute and cannot be “rooted in religious belief.” Bryce, 289 F.3d at 657.

If a fraud claim is not about something that is “exclusively secular” and in some way is “mixed with religious beliefs and claims” , then the fraud is legal because of church autonomy. That is their argument. 

No, the fraud claim is not justiciable because of the Ecclesiastical Abstention Doctrine.

41 minutes ago, Analytics said:

I know that is what the defendant’s are arguing, but the problem is that they are responding to a straw man and not to the actual complaint.

The defendants are mostly addressing what the law says, not what the plaintiffs are asserting.

41 minutes ago, Analytics said:

If you go back to paragraph 132 of the complaint where this was quoted from, in context it says:

Plaintiffs did not believe and had no reason to ever suspect that LDS would take any portion of their donations and invest it into Ensign, where it would sit and accumulate interest in perpetuity and otherwise be used in manners antithetical to the purported mission of LDS and Ensign. And even if Plaintiffs had any suspicions that LDS was engaging in any such practice, they never could have discovered it.

In context, the real issue isn’t whether or not the Church was being true to the Church’s doctrine.

That is precisely what the context establishes.  They are asserting that the Church's use of funds has been "antithetical to the purported mission of LDS and Ensign."  This is not a fraud claim, but a intra-religious dispute that is barred by the Ecclesiastical Abstention Doctrine.

41 minutes ago, Analytics said:

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.

Nope.

41 minutes ago, Analytics said:

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.

None of this has much to do with the merits of the MDL lawsuit.

And nobody is suggesting a contrary proposition.

41 minutes ago, Analytics said:

If the doctrine of the Church is that most revenue should be used to build up the for-profit business empire, then it is their prerogative to use the revenue that way. But how does church autonomy give churches the right to fraudulently mislead members about how funds will be used? That is the issue.

No, it's not.

41 minutes ago, Analytics said:

Quote

Judge Shelby can only evaluate fraud claims based on civil law.  Claims based on differences of opinion regarding the Church's doctrines our plainly out of bounds.

I agree. Of course.

Everything you have said above indicates that you neither agree with my statement, nor understand the applicable principles of law.

41 minutes ago, Analytics said:

Quote

That is not a correct statement of the law.  We have been over this several times, as recently as February of this year, and before that in November 2022.

The Harmston case is a good example of how a fraud claim against a religious group can be something other than "exclusively secular":

This is now the third time I have quoted Harmston on this board, and the second time quoting it directly to you.  Bolded stuff and all.

Do you see the difference between a fraud lawsuit based on (A) the plaintiffs "{giving} money to the Church in exchange for promises of future earthly benefits" such as "land and support" and "repayment of her retirement funds" versus (B) the plaintiffs having “never met Christ face to face as promised”?

Do you see how (A)-style claims "do not necessarily implicate the Church's government, faith, or doctrine"?

Do you see how (A)-style claims "{are} supported by allegations of secular activity potentially amounting to violations of generally applicable civil law"?

Do you also see how (B)-style claims do "necessarily implicate the Church's government, faith, or doctrine" and "{are not} supported by allegations of secular activity potentially amounting to violations of generally applicable civil law," since a promise to arrange a meeting with Jesus is "an entirely religious matter," and hence is "an entirely religious matter beyond the courts' ability to adjudicate"?

Sure. I understand the Harmston case well enough.

I don't think you do.  Your comments above indicate you still don't understand the basic legal principles in play.

41 minutes ago, Analytics said:

The problem is that when viewed through the Harmston paradigm, the 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.

Malarky.  What "secular things" did the Church promise to the MDL plaintiffs?

41 minutes ago, Analytics said:

Am I wrong about that?

Yes.  Bigly.  Neither you nor the MDL plaintiffs have presented any allegation that the Church encouraged its donors to "give money to the Church in exchange for promises of future earthly benefits"

41 minutes ago, Analytics said:

The way I read the complaint is that the reason the Church was being deceptive to the SEC about the assets it controls was to further its objective of being deceptive to the donors, because if the donors knew the details about how the money was really being allocated, many of them would stop donating. Again quoting Roger Clarke, “they never wanted to be in a position where people felt like, you know, they shouldn’t make a contribution."

Cart before the horse.  Again.

41 minutes ago, Analytics said:

How is it ethical to conceal information and deliberately mislead people so that they will make donations they wouldn’t make if they knew the truth?

How is it ethical for you to torture puppies for fun and profit?

41 minutes ago, Analytics said:

And how does the church autonomy doctrine relate to the actual complaint rather than the Church’s misrepresentation of it?

I've about run out of steam in trying to work with you in assessing the merits of the MDL lawsuit.  You just keep regurgitating risible and loaded caricatures of factual allegations, all the while ignoring the applicable principles of law.

Thanks,

-Smac

[smac97]

31 minutes ago, Stargazer said:

I'm not sure if Spencer addressed the "fail to state" adequately. Not that I am a lawyer, but...

"Failure to state a claim" is frequently shorthand meaning "Failure to state a claim for which relief can be granted."

If the court can't do anything to help you, even if your claim is valid, then no relief can be granted, and the case should be dismissed.

Reasons why relief couldn't be granted include such things as

• the statute of limitations has been exceeded (e.g. the statute of limitations requires that you sue within 180 days after realizing that you have a case, but you filed the suit 181 days afterwards)
• the court can't do the thing you want done, even assuming you won

 

Another bullet point would be "fraud claims centering on disputes about church governance are, as a threshold matter, barred by the Ecclesiastical Abstention Doctrine."

Thanks,

-Smac

[Analytics]

 

4 hours ago, smac97 said:

Their claims are about religion-motivated donations (tithes) to the Church, the religious missions of the Church, and whether the Church's funding of City Creek was "antithetical" to these missions.  And this is, for you, not about legal claims that are "religious in nature"?

In the plaintiffs’ Opposition to Motion to Stay Discovery, the plaintiffs say, starting at the bottom of page 1:

Although the Complaint does not challenge any religious practice of LDS, Defendants’ Motion asserts that because LDS is a church and tithing is a religious practice of LDS, the church autonomy doctrine will bar Plaintiffs’ claims. The Motion ignores the breadth and nature of Plaintiffs’ allegations and the scope of discovery.

You are continuing to ignore those things, too. If you aren’t willing to acknowledge the breadth and nature of the plaintiffs’ actual allegations, I see no value in talking about this with you. 

 

Edited September 19, 2024 by Analytics

[Stargazer]

10 hours ago, smac97 said:

Another bullet point would be "fraud claims centering on disputes about church governance are, as a threshold matter, barred by the Ecclesiastical Abstention Doctrine."

Thanks,

-Smac

Well, you did say that, so I didn't want to suggest you hadn't.  

[smac97]

13 hours ago, Analytics said:

In the plaintiffs’ Opposition to Motion to Stay Discovery, the plaintiffs say,

You seem to be under the impression that what the plaintiffs say is determinative of how Judge Shelby must treat the legal claims and issues.  That is not so.  Of course the plaintiffs are going to include denials intended to evade the Ecclesiastical Abstention Doctrine.  Judge Shelby is not bound by these denials.  He will, instead, scrutinize the factual and legal substance of the claims, giving little or no weight to the plaintiffs' glosses, denials, etc.

13 hours ago, Analytics said:

starting at the bottom of page 1:

Although the Complaint does not challenge any religious practice of LDS,

The use of tithing is not a "religious practice"?  You're really going to go with that?

13 hours ago, Analytics said:

Defendants’ Motion asserts that because LDS is a church and tithing is a religious practice of LDS, the church autonomy doctrine will bar Plaintiffs’ claims. 

This is not an accurate characterization of the Church's motions.

13 hours ago, Analytics said:

The Motion ignores the breadth and nature of Plaintiffs’ allegations and the scope of discovery.

I don't think this works either.  Again, the plaintiffs need to say such things to avoid the Ecclesiastical Abstention Doctrine.  But at the end of the day, the plaintiffs' claims are rooted in and arise out of a religious dispute.  The plaintiffs take exception to how the Church is managing its finances.  Matters of church governance are beyond the scope of judicial review.  The plaintiffs' attorneys know this, so they try to characterize their claims as arising under secular law, and the closest legal theories that fit are the causes of action in the plaintiffs' complaint (fraud, fiduciary duty, etc.). 

The sine qua non of an affirmative fraud claim is a false representation.  The plaintiffs' only shot at this is to ask the court 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).  I am pretty sure Judge Shelby will not want to touch this with a ten-foot pole, as doing so would violate the Church's First Amendment rights.  

The plaintiffs' fraudulent nondisclosure and breach of fiduciary duty claims also fail because case law posits that there is no legal duty to disclose the things the MDL plaintiffs say the Church should have disclosed.  I get that you and yours are fixated on what you think the law ought to be about this, but Judge Shelby will not follow you down that rabbit trail.  He will apply the law as currently constituted.  So these claims fail as well.

13 hours ago, Analytics said:

You are continuing to ignore those things, too.

Poppycock.  I have examined the plaintiffs' claims many times over.  I have also examined applicable case law and cited and quoted it, chapter and verse.

13 hours ago, Analytics said:

If you aren’t willing to acknowledge the breadth and nature of the plaintiffs’ actual allegations, I see no value in talking about this with you. 

I think you do not understand the law well enough to meaningfully address the merits of the MDL lawsuits, and you are not willing to do the work necessary to develop the minimal amount of understanding needed to do so.

The plaintiffs' claims are, I think, stumbling out of the gate.  I think most, perhaps all, of them will be dismissed under Rule 12(b)(6) of the Federal Rules of Civil Procedure.

Rule 12 posits that even if the plaintiffs factual claims, and all reasonable inferences arising therefrom, are construed in a light most favorable to the plaintiffs, the plaintiffs must still lose the case.  And not just lose, but lose at the earliest stages of the suit. 

Rule 12 is sort of like a bouncer at a nightclub, the big beefy guy who gets to decide who gets to go through the doors and into the club to part-ay.  If the MDL plaintiffs want to get into the nightclub, they must get past the bouncer.  How cool the MDL plaintiffs are, how much money they have, how groovy their dance moves are, none of this matters a lick of the bouncer doesn't let them in.  If the bouncer isn't satisfied, no amount of wheedling and cajoling about "the breadth and nature" of the MDL plaintiffs' awesomeness will be worth a tinker's darn because the plaintiffs are not getting into the nightclub.

The bouncer analogy has its limits, of course.  A bouncer can be arbitrary and/or corrupt in deciding who gets in and who does not.  Rule 12, on the other hand, is a carefully crafted and refined and complex mechanism to sift and differentiate between claims which can get through the courthouse doors (and into discovery, litigation, trial, etc.) and which do not.  Rule 12 takes into account threshold factors which the plaintiff may really really want to avoid (such as, for example, the Ecclesiastical Abstention Doctrine).

I haven't looked at the statistics recently, but my recollection is that about 30%-40% of civil lawsuits filed in federal court are dismissed under Rule 12.  That is, roughly one out of every three federal lawsuits is dismissed prior to the plaintiff having any opportunity to use litigation to explore "the breadth and nature" of their claims.

Further, my sense is that this percentage of cases dismissed under Rule 12 is not evenly distributed over all federal cases, and instead has significant spikes and valleys depending on the type of legal claims being asserted.  I strongly suspect that fraud-based lawsuits against religious institutions by former adherents experience a pretty high likelihood of dismissal under Rule 12.

As far as "the breadth and nature of the plaintiffs’ actual allegations," I think they are both narrow (not broad) and inept (in that they cannot be successfully presented to secular courts).  The basic premise is pretty simple.  As noted above, the plaintiffs object to the Church's handling of its finances.  They only potential way to get such a dispute in front of a judge is to frame their dispute as arising under a recognized legal theory (fraud, fiduciary duty, etc.).  This framing is not working well, and I suspect Judge Shelby will apply the principles of law I have cited over and over and dismiss the MDL suit under Rule 12.  If and when that happens, "the breadth and nature of the plaintiffs’ actual allegations" is of very little interest to me.  The MDL plaintiffs have said nothing we haven't heard a hundred times before.

Also, you did not address my previous questions.  Here they are again (in modified form) :

1. Per Harmston, the Ecclesiastical Abstention Doctrine does not apply 

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.

So, 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?

2. You are advancing the plaintiffs' claim that they "{do} not challenge any religious practice of LDS."  You have also stated that "the church autonomy doctrine does in fact grant the church the right to decide how it will deploy its own resources (and I don’t see anywhere where the plaintiffs dispute this)."  And yet they elsewhere state that the Church has used donations “in manners antithetical to the purported mission of” the Church. 

How is the Church's purported antithetical-to-the-mission-of-the-Church expenditure of its funds (A) not a "challenge" to the Church's "religious practice{s}" and/or (B) not a challenge to the Church's "right to decide how it will deploy its own resources"?

Thanks,

-Smac

Edited September 19, 2024 by smac97

[Analytics]

3 hours ago, smac97 said:

You seem to be under the impression that what the plaintiffs say is determinative of how Judge Shelby must treat the legal claims and issues.

That is false. I believe the plaintiffs’ arguments are precisely what they say they are, and I would expect Judge Shelby to judge their actual arguments on their actual merits.

3 hours ago, smac97 said:

Of course the plaintiffs are going to include denials intended to evade the Ecclesiastical Abstention Doctrine.  Judge Shelby is not bound by these denials.

Likewise, he isn’t bound to believe that the plaintiffs arguments are what you say they are rather than what they say they are.

3 hours ago, smac97 said:

The use of tithing is not a "religious practice"?  You're really going to go with that?

The use of tithing isn’t what the lawsuit is about. The lawsuit is about the Church’s alleged dishonesty about how funds will be used. If the Church wants to allocate 80% of its annual income to its for-profit business empire, that is its prerogative. Nobody is denying that. However, if that is what the Church intends to do with its money, it has the obligation to be honest with the people from whom it solicits donations.

The lawsuit is about the Chruch’s alleged fiduciary duty “to fully disclose to them all material facts and information in connection with its disposition of the donations” (First Cause of Action), it allegedly “[making] false representations regarding contemporaneously existing material facts” in the course of soliciting donations (Second Cause), “deliberately [concealing] from plaintiffs and other class members their intention and practices about the donated funds they received (Third Cause), “[making] false statements of material fact that tithing funds would only be used for the LDS Church’s published purposes” (Fourth Cause), and “[misrepresenting] the full extent of its holdings, and also [concealing] that it was directing funds to Ensign, for the puprpose of investing those funds without ever disbursing them towards charitable activities” (Fifth Cause).

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

3 hours ago, smac97 said:

This is not an accurate characterization of the Church's motions.

I don't think this works either.  Again, the plaintiffs need to say such things to avoid the Ecclesiastical Abstention Doctrine.  But at the end of the day, the plaintiffs' claims are rooted in and arise out of a religious dispute.  The plaintiffs take exception to how the Church is managing its finances.  Matters of church governance are beyond the scope of judicial review.  The plaintiffs' attorneys know this, so they try to characterize their claims as arising under secular law, and the closest legal theories that fit are the causes of action in the plaintiffs' complaint (fraud, fiduciary duty, etc.). 

I don’t think you are a very good mindreader. Regardless, and I may be wrong about this, I’m expecting to Judge Shelby to address their actual complaint, not the unargued “real” complaint you think is behind this.

 

[Analytics]

3 hours ago, smac97 said:

Also, you did not address my previous questions.  Here they are again (in modified form) :

1. Per Harmston, the Ecclesiastical Abstention Doctrine does not apply 

So, 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?

They aren’t suing because they didn’t get promised “earthly benefits” in exchange for tithing. They are suing because of the Church’s dishonestly about its financial situation and what it was doing and what it planned on doing with solicited donations. Being honest with donors and potential donors about how it intends to use solicited funds is an earthly thing. I don’t think the Ecclesiastical Abstention Doctrine grants churches a license to blatantly lie about how money will be spent. Am I wrong about that?

3 hours ago, smac97 said:

2. You are advancing the plaintiffs' claim that they "{do} not challenge any religious practice of LDS."  You have also stated that "the church autonomy doctrine does in fact grant the church the right to decide how it will deploy its own resources (and I don’t see anywhere where the plaintiffs dispute this)."  And yet they elsewhere state that the Church has used donations “in manners antithetical to the purported mission of” the Church. 

How is the Church's purported antithetical-to-the-mission-of-the-Church expenditure of its funds (A) not a "challenge" to the Church's "religious practice{s}" and/or (B) not a challenge to the Church's "right to decide how it will deploy its own resources"?

In context, their point is about the Church’s honesty about its financial situation and how assets will be allocated. In context, the point is that "Plaintiffs did not believe and had no reason to ever suspect that LDS would take any portion of their donations and invest it into Ensign." If the real mission of the Church is to accumulate x-trillion dollars in Ensign Peak Advisors because Jesus is going to need the cash when he comes back, then having that mission is their right. However, that doesn’t grant them license to be dishonest in how funds are being solicited. This isn’t that hard. Read the clause about being “antithetical to the mission of the Church” in the full context of that sentence. Then read that sentence in the full context of the actual complaint.

 

[smac97]

On 9/19/2024 at 2:32 PM, Analytics said:

That is false. I believe the plaintiffs’ arguments are precisely what they say they are, and I would expect Judge Shelby to judge their actual arguments on their actual merits.

Judge Shelby is not bound by the plaintiffs' glosses, characterizations, preferences, whatever.  They are entitled to allege facts as they please, but they don't get to evade legal doctrines they dislike by prevaricating about the bush.

On 9/19/2024 at 2:32 PM, Analytics said:

The use of tithing isn’t what the lawsuit is about.

Yes, it is.

On 9/19/2024 at 2:32 PM, Analytics said:

The lawsuit is about the Church’s alleged dishonesty about how funds will be used.

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

On 9/19/2024 at 2:32 PM, Analytics said:

The lawsuit is about the Chruch’s alleged fiduciary duty “to fully disclose to them all material facts and information in connection with its disposition of the donations” (First Cause of Action), it allegedly “[making] false representations regarding contemporaneously existing material facts” in the course of soliciting donations (Second Cause), “deliberately [concealing] from plaintiffs and other class members their intention and practices about the donated funds they received (Third Cause), “[making] false statements of material fact that tithing funds would only be used for the LDS Church’s published purposes” (Fourth Cause), and “[misrepresenting] the full extent of its holdings, and also [concealing] that it was directing funds to Ensign, for the puprpose of investing those funds without ever disbursing them towards charitable activities” (Fifth Cause).

The law does not impose a fiduciary duty in this context.  A legal duty does not spring into existence because the MDL plaintiffs want it.

The fraud-based claims are, I think, barred for a myriad of reasons, including noncompliance with Rule 9, the Ecclesiastical Abstention Doctrine, and so on.

On 9/19/2024 at 2:32 PM, Analytics said:

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

Yes, they are.  

On 9/19/2024 at 2:32 PM, Analytics said:

I don’t think you are a very good mindreader. Regardless, and I may be wrong about this, I’m expecting to Judge Shelby to address their actual complaint, not the unargued “real” complaint you think is behind this.

Plaintiffs get to make factual assertions and legal arguments.  Plaintiffs have failed on both counts.

And you once again have not answered my questions:

1. 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?

2. You are advancing the plaintiffs' claim that they "{do} not challenge any religious practice of LDS."  You have also stated that "the church autonomy doctrine does in fact grant the church the right to decide how it will deploy its own resources (and I don’t see anywhere where the plaintiffs dispute this)."  And yet they elsewhere state that the Church has used donations “in manners antithetical to the purported mission of” the Church. 

How is the Church's purported antithetical-to-the-mission-of-the-Church expenditure of its funds (A) not a "challenge" to the Church's "religious practice{s}" and/or (B) not a challenge to the Church's "right to decide how it will deploy its own resources"?

Thanks,

-Smac

Edited December 24, 2024 by smac97

[smac97]

20 minutes ago, Analytics said:

Quote

Also, you did not address my previous questions.  Here they are again (in modified form) :

1. Per Harmston, the Ecclesiastical Abstention Doctrine does not apply 

So, 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?

They aren’t suing because they didn’t get promised “earthly benefits” in exchange for tithing.

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?  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?

Thanks,

-Smac

Edited September 19, 2024 by smac97

[smac97]

1 hour ago, Analytics said:

Quote

So, 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?

They aren’t suing because they didn’t get promised “earthly benefits” in exchange for tithing.

What?  What?

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

1 hour ago, Analytics said:

They are suing because of the Church’s dishonestly about its financial situation and what it was doing and what it planned on doing with solicited donations. Being honest with donors and potential donors about how it intends to use solicited funds is an earthly thing. I don’t think the Ecclesiastical Abstention Doctrine grants churches a license to blatantly lie about how money will be spent. Am I wrong about that?

You are wrong about a great many things.

1 hour ago, Analytics said:

In context, their point is about the Church’s honesty about its financial situation and how assets will be allocated. In context, the point is that "Plaintiffs did not believe and had no reason to ever suspect that LDS would take any portion of their donations and invest it into Ensign." 

So what?  How does that amount to fraud?  What is the "false statement" that you think underlies this claim?

Thanks,

-Smac

Edited September 19, 2024 by smac97

[Analytics]

 

2 hours ago, smac97 said:

Yes, it is.

No, it is not.

2 hours ago, smac97 said:

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

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? 

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. 

2 hours ago, smac97 said:

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.

 

[Analytics]

2 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 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.

2 hours ago, smac97 said:

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. The case is about the secular concepts of breach of fiduciary duty, fradulent inducement, fraudulent concealment, fraudulent misrepresentation, and unjust enrichment.

[Analytics]

1 hour ago, smac97 said:

What?  What?

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."

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.

1 hour ago, smac97 said:

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

1 hour ago, smac97 said:

You are wrong about a great many things.

Are you quoting the last words of an overly cocky and superlatively evil Sith Lord immediately before his downfall?

1 hour ago, smac97 said:

So what?  How does that amount to fraud?  What is the "false statement" that you think underlies this claim?

The point is that you need to consider their arguments in context. 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. 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, fraudulent inducement, fraudulent concealment, fraudulent misrepresentation, and unjust enrichment.

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.

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?

Edited September 19, 2024 by Analytics