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New Jersey Judge Orders Shut-Down of “Alter Ego” of Former Conversion Therapy Group

Posted on: June 17th, 2019 by Art Leonard No Comments

Hudson County (NJ) Superior Court Judge Peter F. Bariso, Jr., issued a scathing opinion on June 10, ordering the immediate dissolution of an organization calling itself Jewish Institute for Global Awareness (JIFGA) , based on his finding that JIFGA was an “alter ego” of “Jews Offering New Alternatives to Homosexuality” (JONAH), a conversion therapy service that had been convicted of violating the New Jersey Consumer Fraud Act by a jury in Judge Bariso’s court on June 25, 2015.  Ferguson v. JONAH Jews Offering New Alternatives for Healing f/k/a Jews Offering New Alternatives to Homosexuality, 2019 N.J. Super. Unpub. LEXIS 1336 (N.J. Super. Ct., Hudson Co.).

The jury verdict followed a lengthy trial in which “clients” of JONAH testified about the absurd and extreme treatments to which they were exposed.  Many of the clients were young people who were pushed into “therapy” with JONAH by their religiously-observant parents in a desperate attempt to “turn them straight.”  The jury verdict concluded that JONAH, its operators and those associated with it were engaged in consumer fraud, misrepresenting their ability to change a person’s sexual orientation.

After the jury verdict, the parties negotiated a settlement agreement, approved by the judge, under which JONAH was supposed to go out of business and pay substantial damages as reparation to the plaintiffs who had been defrauded.  Arthur Goldberg and other individual defendants were targeted by a permanent injunction issued by Judge Bariso, being “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 affirmation process” or any other equivalent term (“Conversion Therapy”), or advertising or promoting Conversion Therapy-related commerce in or directed at New Jersey or New Jersey residents.”

As part of the settlement agreement, which precluded an appeal by the defendants, the plaintiffs agreed to a lower level of damages than would otherwise be awarded by the court in exchange for defendants’ commitment to pay agreed-upon damages promptly and to put JONAH out of business and comply with the terms of the injunction, which was also binding on the named individual defendants.

But evidence presented by the plaintiffs in support of a March 2018 motion to enforce their rights under the settlement agreement persuaded the court that Goldberg was “blatantly” flouting the settlement agreement and violating the injunction by starting a new organization, JIFGA, to pick up where JONAH left off.  Baroso headed the first part of his findings: “There is clear and convincing evidence that defendants repeatedly violated the settlement agreement and the permanent injunction.”

The ink was barely dry on the signatures before Goldberg resumed making referrals to conversion therapy practitioners for people who called for assistance, and the damages agreed upon were not paid in full.  Goldberg claimed that he understood that the injunction only pertained to clients and therapists in New Jersey, and that he was receiving calls from out of state and referring the callers to therapists who practiced outside the state.  Bariso rejected this crabbed reading of the injunction, finding that there were no geographical “loopholes,” and referred to evidence showing that Goldberg had actually acknowledged in writing the possibility that his referrals were illegal.

Furthermore, the opinion documents Goldberg’s ambitions to take his conversion therapy promotion “global,” as indicated by the name of his new organization.  Wrote Bariso, “Goldberg’s use of his New Jersey non-profit organization has extended outside the United States.  In the spring of 2018, Goldberg reached out to Alan Alencar, a Brazilian leader of Joel 2:25 (conversion therapy organization modeled on JONAH).  In an email, Goldberg wrote, ‘after the demise of JONAH, I created the Jewish Institute for Global Awareness’ and offering to ‘be helpful down there to you.’  When Alencar responded that Joel 2:25 was planning to work on men with SSA [same-sex attraction] and start something similar to JIM [a conversion therapy weekend program], Goldberg jumped on the opportunity to discuss his experience working with ‘the SSA issue’ and how he could help.”  Goldberg put Alencar in touch with three conversion therapy providers in Brazil, and urged the creation of similar programs in Europe after returning from a conference on conversion therapy in Slovakia.

Bariso wrote that various Goldberg communications that surfaced through discovery on this motion “highlight the lies in Goldberg’s statement to this court that JIFGA has not worked ‘to promote commerce in conversion therapy.’”

As to the “alter ego” finding, Bariso wrote, “JONAH and JIFGA have the same co-founders and co-directors (Goldberg and [Elaine] Berk), occupy the same office, and are reachable at the same phone number and email addresses.  Arguably, they have the same name , as JIFGA is a recycled acronym that JONAH once used to market itself to a wider audience.  Through discovery, it was found that JIFGA plainly continues JONAH’s general operations and that JIFGA picked up where JONAH left off.”

Judge Bariso concluded that defendants had committed fraud on the court, “constituting criminal contempt of this court and its orders.”  The court found that Goldberg and JIFGA continued to make referrals to conversion therapy practitioners even as the motion was being litigated, and while they were representing to the court that they were complying with the injunction.

Bariso ruled that JIFGA would be made subject to the existing injunction against JONAH, and specified that “all communications channels in JIFGA’s control and use for JIFGA’s operations, including the email accounts and phone numbers from JONAH, must be terminated.  Goldberg and Berk are also enjoined from serving as directors or officers of or incorporating any tax-exempt entity incorporated in or having operations in New Jersey.”  Since the court found a violation of the settlement agreement, the requirement to pay damages at the full original rate was triggered, “a payment that could have been avoided by simply complying with the permanent injunction and the settlement agreement.”  The court also ordered the defendants to pay the plaintiff’s legal expenses of litigating this motion, which involved lots of discovery time.

However, Judge Bariso denied the plaintiffs’ request to hold the individual defendants in criminal contempt.  “This court seriously questions the direct falsities outlined in Goldberg’s certifications,” wrote Bariso, “along with his willingness to blatantly disobey the permanent injunction.  However, the remedies awarded to plaintiffs will serve the dual purpose of contempt hearings: to deter and to punish.  The inability for defendants to incorporate another tax-exempt entity in New Jersey will insure that defendants no longer use a similar platform to again violate the injunction and the New Jersey Consumer Fraud Act.   Additionally, the monetary damages awarded to plaintiffs will deter defendants from defying this court’s orders.”

Based on his past conduct, it seems likely that Goldberg will try to devise new ways to defy the court’s orders without getting caught, so Judge Bariso’s concluding paragraph seems unduly optimistic and surprisingly naïve.

The plaintiffs are represented by Bruce D. Greenberg of Lite DePalma Greenberg, LLC; David C. Dinielli, of Southern Poverty Law Center; and Lina Bensman of Cleary Gottlieb Steen & Hamilton LLP (New York).

New Jersey Trial Judge Finds Conversion Therapy Outfit Violated Consumer Fraud Law

Posted on: February 17th, 2015 by Art Leonard No Comments

A New Jersey trial judge issued two rulings in February in a pending consumer fraud case against JONAH (Jews Offering New Alternatives for Healing), an organization that provides so-called “conversion therapy” seeking to “assist individuals to purge unwanted same-sex attractions,” finding that certain representations made by JONAH to potential clients violate the state’s law against consumer fraud.  The judge, Peter  F. Bariso, Jr., of the Superior Court in Hudson County, also ruled that most of the expert witnesses proposed by JONAH should be barred from testifying, because their opinions were premised on discredited views about homosexuality.  Ferguson v. JONAH, 2015 N.J. Super. Unpub. LEXIS 236 (Feb. 5) (ruling on expert witnesses); Ferguson v. JONAH, Docket No. L-5473-12 (Feb. 10) (ruling on summary judgment motions).

Six individuals represented by the Southern Poverty Law Center and attorneys from Clearly Gottlieb Steen & Hamilton (NY) and Lite DePalma Greenberg (NJ) filed the lawsuit in November 2014, claiming that they had been defrauded by JONAH and demanding reimbursement of the fees they had paid and compensation for the costs of therapy they had to undergo to undo the damage caused by JONAH’s ministrations.  Both sides had filed motions seeking to disqualify expert witnesses listed to testify by their opponents, and both parties filed motions seeking to have the court decide certain key issues in the case as a matter of law, without the need to submit disputed facts to the jury.  Judge Bariso issued his opinion on the expert witnesses on February 5, and his opinion on the summary judgment motions on February 10.

Common to both rulings was the question whether it is fraudulent for somebody to market a conversion therapy program by representing homosexuality as a mental illness, disease or disorder that can be “changed” by treatment, whether it was deceptive to make statements that would lead a prospective client to believe that they would be able to change their sexual orientation as opposed to merely being conditioned not to engage in same-sex activity, and whether it was fraudulent to include specific “success” statistics when there is no factual basis for calculating such statistics.  Judge Bariso made clear in his decisions that the plaintiffs were not mounting a general attack on the practice of sexual orientation change efforts (SOCE) by mental health professionals, a practice that was recently made unlawful by a New Jersey statute that has withstood constitutional attack in federal court.  Rather, this consumer fraud suit is more narrowly focused on the question whether JONAH has defrauded and harmed these plaintiffs by the representations it made about its services.

“In the area of scientific evidence,” wrote Judge Bariso, “expert testimony will be deemed acceptable only if the technique or mode of analysis used has ‘a sufficient scientific basis to produce uniform and reasonably reliable results so as to contribute materially to the ascertainment of the truth,'” quoting from a 2005 New Jersey Supreme Court decision, State v. Torres.  “The reliability requirement applies to all scientific fields, including the social and psychological sciences.  In New Jersey, reliability of a scientific technique can be proven in most cases by showing its ‘general acceptance in the particular field in which it belongs,'” quoting a leading case on the criteria for expert testimony, Frye v. United States.  In other words, if a proposed expert is going to express views on scientific topics that lie outside the “general acceptance” of the relevant profession, are not supported by “authoritative scientific and legal writing indicating that the scientific community accepts the premises underlying the proffered testimony;” or do not  have the support of relevant judicial opinions finding general acceptance, then such testimony should be excluded.

Using this standard, Judge Bariso found that the proposed scientific experts, all affiliated in some way with organizations supporting conversion therapy, were not qualified to testify.  “The overwhelming weight of scientific authority concludes that homosexuality is not a disorder or abnormal,” he found.  “The universal acceptance of that scientific conclusion — save for outliers such as JONAH — requires that any expert opinions to the contrary must be barred.”  The judge focused on the 1973 vote by members of the American Psychiatric Association to remove “homosexuality” from its official listing of mental disorders, the Diagnostic and Statistical Manual (DSM), which was soon followed by other professional and public health organizations both domestically and internationally.

“JONAH’s suggestion that the court should ignore the DSM misapprehends basic New Jersey law,” he wrote.  “Under the general acceptance standard, the DSM is unquestionably authoritative in the mental health field; courts repeatedly have concluded this to be the case.”  JONAH contended, as some critics have argued, that the APA’s vote was “a politically motivated decision to de-stigmatize homosexuality, and was not based on science.”  But, countered the judge, it is not up to a trial court to “substitute its judgment for that of the relevant scientific community.”  The court does not sit in judgment of whether the APA’s decision was correct, “and no proper basis has been advanced on which a court may reassess the scientific accuracy of the psychiatric characterization of homosexuality.”  After reciting the long list of prestigious organizations that followed the APA’s lead, Bariso commented, “JONAH can hardly argue that all of these organizations — including a federal appellate court [rejecting the challenge to New Jersey’s ban on SOCE therapy] — were the victims of manipulation by ‘gay lobbying’ groups.”

JONAH had pointed to the National Association for Research and Therapy of Homosexuality (NARTH), a small organization co-founded by one of the proposed expert witnesses, Dr. Joseph Nicolosi, a fervent proponent of conversion therapy, as an example of contrary scientific opinion by a professional organization, but the judge pointed out that there need not be unanimity of professional opinion, merely general acceptance.  “The existence of a minority of conversion therapy proponents does not and cannot negate the fact that the DSM and its exclusion of homosexuality are generally accepted in the mental health field,” wrote Bariso.  “Furthermore, a group of a few closely associated experts cannot incestuously validate one another as a means of establishing the reliability of their shared theories.”

Furthermore, he pointed out, “JONAH has not identified any case that provides a standard for the admission of obsolete and discredited scientific theories.  By definition, such theories are unreliable and can offer no assistance to the jury, but rather present only confusion and prejudice.”

Judge Bariso also ruled that two proposed experts should be denied because their testimony was not really relevant to the consumer fraud claims before the court.  Whether JONAH’s statements were consistent with Orthodox Judaism, for example, was irrelevant if the statements were misleading about homosexuality and the efficacy of the therapy offered by JONAH.  Similarly irrelevant was testimony about the health risks of engaging in homosexual conduct.

The findings about homosexuality in the court’s February 5 ruling were incorporated by reference into the February 10 ruling on the summary judgment motions.  Judge Bariso denied all of JONAH’s motions, and granted several of the plaintiffs’ motions.  Specifically, he ruled that “it is a misrepresentation in violation of the Consumer Fraud Act, in advertising or selling conversion therapy services, to describe homosexuality, not as being a normal variation of human sexuality, but as being a mental illness, disease, disorder, or equivalent thereof” and that “it is a misrepresentation in violation of the Consumer Fraud Act, in advertising or selling conversion therapy services, to include specific ‘success’ statistics when there is no factual basis for calculating such statistics, e.g., when client outcomes are not tracked and no records of client outcomes are maintained.”  However, the judge concluded that it should be up to a jury to decide whether a person would be misled by JONAH’s description of the “change” its therapy sought to achieve with clients.  The court also struck out several affirmative defenses advanced by JONAH, including claims that its representations were constitutionally protected speech or free exercise of religion.

While these pretrial rulings do not end the case, they sharply increase the likelihood that JONAH will be found at trial to be liable to the plaintiffs for damages.  It will be up to the plaintiffs to prove that JONAH made the unlawful representations, that its statements about the “change” it sought to achieve through therapy were similarly misleading, and that as a result the plaintiffs were defrauded and are entitled to a refund of fees (in some cases as much as $10,000 for a year of treatment) as well as compensation for the treatment they subsequently sought because of the psychological injury they claim to have suffered as a result of the therapy.  The burden at trial to prove these injuries is placed on the plaintiffs.

Although New Jersey Superior Court decisions are not routinely published, the legal database LEXIS has published Judge Bariso’s February 5 ruling, which includes a detailed report of the plaintiffs’ allegations about some of the treatment methods used by JONAH’s counselors.  To this reader, these techniques appear on their face to be simplistic, misguided, and potentially damaging to the mental health of the clients, as the plaintiffs claim.  They also sound, in some cases, strangely homoerotic as well, and thus potentially quite troubling to clients who were desperate to purge themselves of homosexual attractions.