New Jersey Judge Orders Shut-Down of “Alter Ego” of Former Conversion Therapy Group
By Arthur S. Leonard. This article appears in the July edition of LeGaL’s LGBT Law Notes
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).