M.F. v. Jonah

• Decision Date: 06 July 2021
• Docket Number: A-1076-19
• Parties: M.F., B.U., S.B., C.L., J.B., and B.L., [1] Plaintiffs-Respondents, v. JONAH (Jews Offering New Alternatives for Healing f/k/a Jews Offering New Alternatives to Homosexuality), ARTHUR GOLDBERG, ALAN DOWNING, and ALAN DOWNING LIFE COACHING, LLC, Defendants-Appellants, ELAINE BERK and JEWISH INSTITUTE FOR GLOBAL AWARENESS, Appellants.
• Court: New Jersey Superior Court — Appellate Division

M.F., B.U., S.B., C.L., J.B., and B.L., ^[1] Plaintiffs-Respondents, v. JONAH (Jews Offering New Alternatives for Healing f/k/a Jews Offering New Alternatives to Homosexuality), ARTHUR GOLDBERG, ALAN DOWNING, and ALAN DOWNING LIFE COACHING, LLC, Defendants-Appellants, ELAINE BERK and JEWISH INSTITUTE FOR GLOBAL AWARENESS, Appellants.

No. A-1076-19

Superior Court of New Jersey, Appellate Division

July 6, 2021

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 11, 2021

On appeal from the Superior Court of New Jersey, Law Division Hudson County, Docket No. L-5473-12.

Michael P. Laffey argued the cause for appellants (Messina Law Firm, P.C., attorneys; Michael P. Laffey, on the briefs).

Bruce D. Greenberg argued the cause for respondents (Lite DePalma Greenberg, LLC, attorneys); Luke A. Barefoot, Lina Bensman and Thomas S. Kessler (Cleary Gottlieb Steen & Hamilton) of the New York bar, admitted pro hac vice, attorneys; and Scott D. McCoy (Southern Poverty Law Center) of the Alabama bar, admitted pro hac vice, attorney (Bruce D. Greenberg, on the briefs).

Samuel Colabella argued the cause for amicus curiae coalition of psychologists and psychotherapists (Gruber, Colabella Liuzza, Thompson & Hiben, attorneys; Mark Gruber and Samuel Colabella, on the brief).

Ronald D. Coleman argued the cause for amicus curiae Family Research Council and New Yorkers for Constitutional Freedoms (Dhillon Law Group, Inc., attorneys; Ronald D. Coleman, on the brief).

Before Judges Gilson, Moynihan, and Gummer.

PER CURIAM.

This appeal arises out of plaintiffs' efforts to enjoin defendants from engaging in or promoting conversion therapy intended to change a person's sexual orientation. Appellants Arthur Goldberg, Elaine Berk, and the Jews Offering New Alternatives for Healing (JONAH) (collectively defendants) appeal from a June 10, 2019 order enforcing a prior order and settlement agreement under Rule 1:10-3.^[2] The trial court found that defendants had violated the court's prior post-trial permanent injunction order and the parties' related settlement agreement. Accordingly, the trial court imposed further injunctive relief and awarded plaintiffs damages and attorneys' fees. Defendants challenge the June 10, 2019 order on numerous grounds. We discern no merit in defendants' arguments and affirm.

I.

In November 2012 plaintiffs filed suit, alleging that defendants had engaged in deceptive and fraudulent practices by referring plaintiffs to conversion therapy, which defendants represented could reduce or eliminate plaintiffs' "same-sex attractions." Plaintiffs asserted that defendants had made false representations about the nature and origin of homosexuality and the effectiveness of conversion therapy services, and they had suffered financial and emotional harm from purchasing and engaging in services offered by or through defendants. Plaintiffs contended that defendants' practices violated the New Jersey Consumer Fraud Act (the CF Act), N.J.S.A. 56:8-1 to -20.

Following several years of litigation and a trial, a jury found that JONAH and Goldberg had engaged in unconscionable business practices in violation of the CF Act. In December 2015, the parties entered into a confidential settlement agreement (the Settlement Agreement).

Under the Settlement Agreement, the parties consented to submit an order to be entered by the trial court. Accordingly, on December 18, 2015, the trial court entered an order granting permanent injunctive relief and awarding attorneys' fees to plaintiffs (the Injunction Order). The Injunction Order directed, among other things, that JONAH dissolve and defendants immediately cease engaging in or promoting conversion therapy or related commerce "in or directed at New Jersey."

Specifically, the Injunction Order provides, in relevant part:

1. JONAH, Inc. shall permanently cease any and all operations . . .;

2. JONAH, Inc. shall permanently dissolve as a corporate entity and liquidate all its assets, tangible or intangible, . . .;

3. . . . Defendants are permanently enjoined from engaging, whether directly or through referrals, in any therapy, counseling, treatment or activity that has the goal of changing, affecting or influencing sexual orientation, "same sex attraction" or "gender wholeness," or any other equivalent term, whether referred to as "conversion therapy," "reparative therapy," "gender affirming processes" or any other equivalent term ("Conversion Therapy"), or advertising, or promoting Conversion Therapy or Conversion Therapy-related commerce in or directed at New Jersey or New Jersey residents (whether in person or remotely, individually or in groups, including via telephone, Skype, email, online services or any delivery medium that may be introduced in the future, and including the provision of referrals to providers, advertisers, promoters, or advocates of the same) . . .; [and]

4. Plaintiffs' counsel is awarded attorneys' fees and expenses in the amount of three million five hundred thousand U.S. dollars ($3, 500, 000) . . .;

Under the Settlement Agreement, plaintiffs agreed to accept a substantially reduced fee award and defendants waived their right to appeal the jury verdict or Injunction Order. Defendants also agreed that if they breached the Injunction Order or the Settlement Agreement and failed to cure any breach within thirty days, they would have to pay "Breach Damages."

Among other things, the Settlement Agreement provided Berk was bound by the terms of the Injunction Order; Goldberg and Berk were to resign from all positions they held with conversion therapy-related organizations; and they were not to hold any future positions in organizations engaged in or promoting conversion therapy.

In March 2018, plaintiffs filed a motion to enforce litigants' rights under Rule 1:10-3, arguing that defendants had violated and continued to violate the Injunction Order and Settlement Agreement. After defendants submitted opposing papers and the trial court heard oral argument, on the record, the court found defendants had breached the Settlement Agreement and Injunction Order by making referrals to conversion therapy providers and receiving referral fees for conversion therapy services.

On May 15, 2018, the court issued an order (1) finding that defendants had breached paragraph three of the Injunction Order and paragraph six of the Settlement Agreement; (2) granting defendants thirty days from the date of oral argument to cure the breaches as permitted under the Settlement Agreement; and (3) allowing plaintiffs to engage in discovery related to the alleged breaches, including whether the Jewish Institute for Global Awareness (JIFGA) was an alter ego or continuation of JONAH.

Approximately a year later, in March 2019, plaintiffs filed a second motion to enforce litigants' rights based on the discovery they had received. In support of their motion, plaintiffs submitted documents showing that JONAH had continued to operate under the new name JIFGA. In addition, plaintiffs submitted documents showing that Goldberg and Berk had continued to refer individuals to conversion therapists and had received, through JIFGA, referral fees.

The court heard oral argument on plaintiffs' second motion on June 7, 2019. Three days later, on June 10, 2019, the trial court issued an order and a written opinion granting plaintiffs' motions to enforce litigants' rights.

The trial court found that Goldberg and Berk had violated the Injunction Order and Settlement Agreement by establishing JIFGA, which was a successor in interest and continuation of JONAH. The trial court also found that Goldberg and Berk had continued to engage in conversion therapy and had promoted conversion therapy-related commerce. Furthermore, the court found those violations were willful and uncured.

In the June 10, 2019 order, the trial court directed that (1) JIFGA was subject to a permanent injunction, requiring it to permanently cease operations and dissolve as a corporate entity; (2) defendants were to pay plaintiffs the Breach Damages as set forth in the Settlement Agreement; (3) defendants were to disgorge all monies "received in connection with their facilitation of [c]onversion [t]herapy"; and (4) Goldberg and Berk were "permanently enjoined from incorporating or serving as officers, directors or trustees" for any tax-exempt entity incorporated or having operations in New Jersey. The trial court also permitted plaintiffs to move for counsel fees and costs in connection with the Rule 1:10-3 motions.

Defendants moved for reconsideration and to stay the June 10, 2019 order pending an appeal. On July 11, 2019, the trial court heard argument on the motions and entered two orders: (1) an order granting, in part, reconsideration and modifying paragraph eight of the June 10, 2019 order to permit Goldberg to remain co-president of Congregation Mount Sinai in Jersey City, president of New Jersey Hebrew Free Loan, and a board member of a condominium association; and (2) an order granting, in part, the stay pending appeal. Meanwhile, plaintiffs filed a motion for attorneys' fees and costs. On September 30, 2019, the court entered an order granting that motion.

Defendants now appeal from the June 10, 2019 order. The Family Research Council, the New Yorkers for Constitutional Freedoms, and "a coalition of psychologists and psychotherapists" filed amicus curiae briefs in support of certain of defendants' positions on appeal.

II.

Defendants make nine main arguments on this appeal. They contend (1) the trial court erred in finding that they had made referrals for conversion therapy; (2) JIFGA's crowdfunding website did not violate the permanent injunction; (3) the permanent injunction is limited to defendants'...