M.F. VS. JONAH (L-5473-12, HUDSON COUNTY AND STATEWIDE)

M
                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-1076-19

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.
_____________________________

                   Argued May 11, 2021 – Decided July 6, 2021


1
  We use initials and titles for plaintiffs and certain individuals to protect their
privacy interests.
           Before Judges Gilson, Moynihan, and Gummer.

           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).

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)

                                                                      A-1076-19
                                     2
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.


2
  Elaine Berk was not originally named as a defendant in the lawsuit brought by
plaintiffs. Nevertheless, through a settlement agreement, Berk agreed that she
would be subject to restrictions under the order granting injunctive relief.
                                                                           A-1076-19
                                       3
      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

                                                                          A-1076-19
                                        4
            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.




                                                                          A-1076-19
                                       5
      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


                                                                           A-1076-19
                                       6
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


                                                                             A-1076-19
                                         7
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 bri efs 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


                                                                          A-1076-19
                                        8
injunction; (3) the permanent injunction is limited to defendants' conduct in New

Jersey; (4) defendants cured any alleged breach relating to the receipt of referral

fees by refunding those fees; (5) the trial court erred in finding that Goldberg

violated the permanent injunction by participating in a "Journey Into Manhood"

weekend; (6) the trial court erred in ordering defendants to pay damages; (7) the

trial court improperly barred defendants from holding positions with non-profit

organizations; (8) the trial court erred in finding that Berk violated the

permanent injunction; and (9) the trial court erred in holding that JIFGA was a

continuation of JONAH.

      Three amici filed two briefs in support of defendants' positions. The

coalition of psychologists and psychotherapists argues that the trial court based

its decision on a flawed understanding of therapeutic practices. The Family

Research Council and New Yorkers for Constitutional Freedoms argue that (1)

the trial court erred in ruling that the CF Act applies to conduct outside of New

Jersey; (2) banning advocacy related to             conversion therapy      is an

unconstitutional prior restraint on speech; and (3) the ban on defendants'

incorporation of or service with corporations in New Jersey is an

unconstitutional restriction on defendants' rights of free association and due

process.


                                                                             A-1076-19
                                        9
      We are not persuaded by any of these arguments. The arguments by

defendants and the amici can be consolidated into four issues: (1) whether

defendants breached the Injunction Order and Settlement Agreement; (2)

whether defendants cured all violations by refunding referral fees; (3) whether

the trial court erred in ordering defendants to pay damages; and (4) whether the

trial court erred by barring defendants from incorporating or serving in

leadership positions with non-profit organizations in New Jersey.

      1.    Defendants' Breaches

      Defendants do not and cannot challenge the Injunction Order or the

Settlement Agreement. Indeed, defendants waived their right to appeal the

underlying jury verdict as part of the Settlement Agreement. Instead, defendants

appeal from the June 10, 2019 order enforcing the Injunction Order and

Settlement Agreement.

      Rule 1:10-3 allows litigants to enforce court orders. In re Adoption of

N.J.A.C. 5:96 & 5:97, 

221 N.J. 1

, 17 (2015). "The scope of relief in a motion

in aid of litigants' rights is limited to remediation of the violation of a court

order." Abbott ex rel. Abbott v. Burke, 

206 N.J. 332

, 371 (2011). Nevertheless,

if a court determines that parties have disobeyed an order, the court has

discretion and flexibility in fashioning an appropriate remedy to compel


                                                                           A-1076-19
                                      10
compliance. In re N.J.A.C. 5:96, 221 N.J. at 17-18; Milne v. Goldenberg, 

428

N.J. Super. 184

, 198 (App. Div. 2012).

      Courts have broad discretion when assisting litigants seeking to enforce

orders securing their rights.    See In re N.J.A.C. 5:96, 221 N.J. at 17.

Accordingly, a court is not required to hold an evidentiary hearing on a Rule

1:10-3 motion unless there are material factual disputes concerning the parties'

"compliance with the order or ability to comply." State Dep't of Env't Prot. v.

Mazza & Sons, Inc., 

406 N.J. Super. 13

, 29 (App. Div. 2009). The moving party

is not required to establish willful disobedience when seeking to enforce an

order. In re N.J.A.C. 5:96, 221 N.J. at 17. Nevertheless, coercive relief is

permissible when there is a showing of willful non-compliance. Id. at 18.

Furthermore, the court has "discretion [to] make an allowance for counsel fees

to be paid by any party to the action to a party accorded relief" in accordance

with Rule 1:10-3. Consequently, a fee award is permissible where a party's

violation of the court order was willful. Hynes v. Clarke, 

297 N.J. Super. 44

,

57 (App. Div. 1997).

      We review an order enforcing litigants' rights for an abuse of discretion.

Wear v. Selective Ins. Co., 

455 N.J. Super. 440

, 458-59 (App. Div. 2018) (citing

Barr v. Barr, 

418 N.J. Super. 18

, 46 (App. Div. 2011)). Accordingly, we reverse


                                                                          A-1076-19
                                      11
such orders only if they lack a rational explanation, depart from established

policies, or rest on an impermissible basis. 

Id. at 459

. An award of counsel fees

under Rule 1:10-3 is also reviewed for an abuse of discretion. 

Ibid.

 (quoting

Packard-Bamberger & Co. v. Collier, 

167 N.J. 427

, 444 (2001)).

      We generally defer to a trial court's factual findings so long as those

findings are supported by substantial credible evidence. N. Jersey Media Grp.,

Inc. v. State, Off. of Governor, 

451 N.J. Super. 282

, 295-96 (App. Div. 2017)

(quoting Zaman v. Felton, 

219 N.J. 199

, 215 (2014)); P.T. v. M.S., 

325 N.J.

Super. 193

, 219 (App. Div. 1999). We give less deference, however, when no

witness testified, and the matter was heard on the papers. N.J. Div. of Child

Prot. & Permanency v. J.D., 

447 N.J. Super. 337

, 350 (App. Div. 2016) (citing

N.J. Div. of Youth & Fam. Servs. v. G.M., 

198 N.J. 382

, 396 (2009)).

      The trial court found that defendants had violated the Injunction Order

and Settlement Agreement in three main ways: (1) establishing and operating

JIFGA; (2) operating a crowdfunding website run by JIFGA; and (3) continuing

to make referrals for conversion therapy. The trial court's findings are supported

by the record. Moreover, any one of these violations supports the relief granted

by the trial court.




                                                                            A-1076-19
                                       12
      A.    JIFGA

      The trial court found that JIFGA was a successor in interest to and

continuation of JONAH. The facts and law support that finding.

      Courts consider various factors in determining whether an entity is a

successor in interest to and continuation of a predecessor corporation. Those

factors include continuity of ownership, management, personnel, physical

location, assets, and general business operations. Ramirez v. Amsted Indus.,

Inc., 

86 N.J. 332

, 342 (1981); 160 W. Broadway Assocs., LP v. 1 Mem'l Drive,

LLC, 

466 N.J. Super. 600

, 611 (App. Div. 2021) (quoting Woodrick v. Jack J.

Burke Real Est., Inc., 

306 N.J. Super. 61

, 73 (App. Div. 1997)); Arevalo v.

Saginaw Mach. Sys., 

344 N.J. Super. 490

, 503-04 (App. Div. 2001). The court

can also consider whether the new entity effectively holds itself out as a

successor in interest to the prior entity. Marshak v. Treadwell, 

595 F.3d 478

,

490 (3d Cir. 2009) (citation omitted). It is not necessary to establish all these

factors; rather, the critical issue is whether the factors demonstrate that the new

entity was intended to carry on the operations of the old entity. Woodrick, 306

N.J. Super. at 74 (citations omitted).

      The trial court found that JIFGA and JONAH had the same cofounders

and codirectors – Goldberg and Berk; JIFGA was reachable at the same phone


                                                                             A-1076-19
                                         13
number and email addresses as JONAH; and JIFGA continued JONAH's primary

purpose of promoting conversion therapy through referrals to therapists.

Moreover, while not cited in the trial court's June 10, 2019 written decision, the

record demonstrates JIFGA and JONAH occupied the same office space. Those

findings are supported by the record.

      B.     JIFGA's Crowdfunding Website

      The trial court found that the crowdfunding website run by JIFGA violated

the Injunction Order because it raised money for projects promoting conversion

therapy and JIFGA retained four percent of the money collected for those

projects.    The record establishes that the programs promoted on the

crowdfunding website included a video series on "reparative therapy ," that is,

conversion therapy, and that the video series was for sale. Those undisputed

facts establish that JIFGA's crowdfunding website was promoting conversion

therapy-related commerce in or directed at New Jersey or New Jersey's

residents.

      Defendants argue that the crowdfunding website did not violate the

Injunction Order or Settlement Agreement because it was used by third parties

to raise funds. That argument ignores the undisputed fact that JIFGA retained

four percent of all the funds raised.


                                                                            A-1076-19
                                        14
      Defendants and amici also contend that "the trial court's ban on advocacy

relating to so-called 'conversion therapy' is an unconstitutional form of prior

restraint of speech." We disagree. The restrictions imposed in the Injunction

Order and Settlement Agreement were an outgrowth of the jury verdict finding

that defendants had violated the CF Act by engaging in unconscionable

commercial practices, specifically, through the promotion and provision of

conversion therapy. 3 Accordingly, defendants, including Berk, settled that case

by agreeing to the limitations placed on them in the Injunction Order and

Settlement Agreement. Such litigation-based restrictions do not violate First

Amendment rights. See LaManna v. Proformance Ins. Co., 

184 N.J. 214

, 224

(2005) (recognizing parties may waive constitutionally guaranteed rights by

agreement); Midland Funding, L.L.C. v. Giambanco, 

422 N.J. Super. 301

, 310

(App. Div. 2011).

      Furthermore, no constitutional argument was raised before the trial court.

Consequently, we decline to address these new arguments on appeal. Nieder v.

Royal Indem. Ins. Co., 

62 N.J. 229

, 234 (1973). Moreover, to the extent that


3
   We note that in 2020, the Legislature enacted N.J.S.A. 45:1-54 to -55, which
outlawed the provision of conversion therapy to individuals under the age of
eighteen. In doing so, the Legislature aptly stated our State's well-reasoned
public policy: that "[b]eing lesbian, gay, or bisexual is not a disease, disorder,
illness, deficiency, or shortcoming." N.J.S.A. 45:1-54(a).
                                                                            A-1076-19
                                       15
amici's arguments go beyond those made by defendants, we disregard those

arguments. Bethlehem Twp. Bd. of Educ. v. Bethlehem Twp. Educ. Ass'n, 

91

N.J. 38

, 48-49 (1982).

      C.    The Continued Referrals for Conversion Therapy

      The trial court found that Goldberg and Berk violated the Injunction Order

and Settlement Agreement by continuing to refer people to conversion therapy.

The record supports that finding. From late December 2015 to late May 2018,

there were numerous email exchanges in which Goldberg, and to a lesser extent

Berk, communicated with people seeking conversion therapy and therapists

providing conversion therapy.      They also followed up to ensure that they

received referral fees.

      For example, in an email dated December 31, 2015, Berk informed a

therapist who provided conversion therapy services that she and Goldberg were

"no longer allowed to legally offer any advice or suggestions to individuals

concerning reparative therapy" but they "[were] currently starting a new

organization which we will announce soon."         Thereafter in March 2016,

Goldberg and Berk announced the formation of JIFGA, which promoted, among

other things, "morality in sexual relations."




                                                                          A-1076-19
                                       16
      In an email dated March 19, 2016, Goldberg directed a recipient of

conversion therapy to JIFGA's website. In an email dated August 3, 2017,

Goldberg gave the contact information of three therapists who provided

conversion therapy services and encouraged the email recipient to "check our

new websites," including the crowdfunding website. Berk was copied on that

email. In an email dated January 29, 2018, Goldberg introduced himself to a

conversion therapy provider, stating that "[a]fter the demise of JONAH, I

created the Jewish Institute for Global Awareness (www.jifga.org) as well as a

crowd-funding project, www.fundingmorality.com to assist those who are

involved in Biblically correct activities."

      Defendants argue that the record is ambiguous and, in some cases,

contested regarding whether they referred individuals for conversion therapy, as

opposed to other types of therapy. In addition, defendants contend that their

referrals did not violate the Injunction Order or Settlement Agreement because

the referrals were made to individuals outside of New Jersey to therapists

outside of New Jersey.

      Amici amplify those arguments.          The coalition of psychologists and

psychotherapists contends that the court erred by assuming that defendants'

referrals were for conversion therapy, arguing that therapists treat individuals


                                                                          A-1076-19
                                       17
for a variety of issues. The Family Research Council and New Yorkers for

Constitutional Freedoms argue that the court erred in finding that the CF Act

applies to conduct outside the State of New Jersey. The facts established by the

record refute all these arguments.

      The record is clear and undisputed that many of defendants' referrals for

conversion therapy were made from New Jersey. For example, an individual

sent an email to the JONAH website on January 5, 2016, asking for help "to take

the homosexuality out of my life." Goldberg responded using his JONAH email

address, asking where the individual was from, and asking to speak with the

individual by phone. Similarly, in an email exchange on May 4, 2016, an

individual asked Goldberg for the name of a female therapist to treat a "girl with

active [same-sex attraction]."    Using his JONAH email address, Goldberg

responded with the name and contact information of a counselor who "deal[t]

with such issues." These emails, and others like them, were all sent from the

JONAH website set up and operated in New Jersey.

      Moreover, we note that the trial judge had extensive experience with

defendants because he had presided over a multi-year litigation, a three-week

trial, and multiple post-verdict motions. The trial judge was, therefore, amply




                                                                            A-1076-19
                                       18
qualified to draw inferences from the evidence and to make factual findings

based on his knowledge of the issues and the parties.

      We also reject defendants' and the amici's geographic argument

concerning the CF Act. As already noted, defendants waived their right to

appeal the jury verdict. In doing so, they also waived their right to argue that

their unconscionable business practices should be restricted only in New Jersey.

      Nevertheless, even if we were to consider this geographic issue, we would

reject it on two independent grounds. First, the Injunction Order does not have

a geographic limitation on the prohibition against defendants engaging in

referrals for conversion therapy. The language in the Injunction Order was

negotiated and agreed to by defendants and their counsel. The Injunction Order

states, in relevant part: "Defendants are permanently enjoined from engaging,

whether directly or through referrals, in . . . ('Conversion Therapy'), or

advertising, or promoting Conversion Therapy or Conversion Therapy-related

commerce in or directed at New Jersey or New Jersey residents."

      The qualifying phrase "in or directed at New Jersey or New Jersey

residents" refers only to the last antecedent and does not modify the phrase

concerning the injunction on referrals. This interpretation is consistent with the

last antecedent rule, "a principle of statutory construction that holds that, unless


                                                                              A-1076-19
                                        19
a contrary intention otherwise appears, a qualifying phrase within a statute refers

to the last antecedent phrase." State v. Gelman, 

195 N.J. 475

, 484 (2008); see

also Alexander v. Bd. of Rev., 

405 N.J. Super. 408

, 417 (App. Div. 2009).

      Second, the undisputed facts in the record establish a clear connection

between defendants' activities and New Jersey. Actions pursued under the CF

Act require some nexus with New Jersey, through either the perpetrator or the

victim of the alleged fraud, or the location of the transaction. Real v. Radir

Wheels, Inc., 

198 N.J. 511

, 514, 527 (2009) (holding CF Act applied to internet

transaction between New Jersey seller and out-of-state purchaser); Smith v. Alza

Corp., 

400 N.J. Super. 529

, 551-52 (App. Div. 2008) (finding CF Act applicable

in action between New Jersey packager and Alabama plaintiff because "New

Jersey [was] the site of the alleged deceptive practice").

      The record establishes that Goldberg and Berk principally operated out of

New Jersey. For example, the two entities that they set up – JONAH and JIFGA

– were both located and operated in New Jersey. Moreover, the record contains

multiple examples of Goldberg and Berk engaging in communications while

they were in New Jersey. Accordingly, the broad reach of the CF Act was not

exceeded. See Real, 

198 N.J. at 522

 (noting that the CF Act has an "intentionally

broad" reach, but "is not without boundaries").


                                                                             A-1076-19
                                       20
      2.     Defendants Did Not Cure All Violations by Refunding Some
             Referral Fees

      The Settlement Agreement allows defendants thirty days to cure any

breach. When plaintiffs filed their first motion to enforce litigants' rights, the

trial court found violations but gave defendants an opportunity to cure.

Defendants then refunded some referral fees.

      After conducting discovery, plaintiffs filed their second motion to enforce

litigants' rights.   Defendants argued that they had cured the violations by

refunding referral fees. The trial judge rejected that argument. The record

amply supports the trial judge's factual findings that the refunds were not

complete, and that defendants did not cure all the violations.

      By establishing JIFGA and its crowdfunding website, Goldberg and Berk

violated the Injunction Order and the Settlement Agreement.            Moreover,

Goldberg and Berk continued to refer individuals for conversion therapy and the

refund of some of the referral fees did not cure those breaches. Finally, even

though some fees were refunded, the record supports the trial court's conclusion

that not all referral fees were refunded.




                                                                            A-1076-19
                                       21
      3.       The Trial Court Did Not Err in Ordering Defendants to Pay
               Damages

      In the Settlement Agreement, defendants acknowledged that plaintiffs

were entitled to $3,500,000 in attorneys' fees and costs. The parties then agreed

that plaintiffs would accept $400,000, but if defendants breached the Settlement

Agreement or Injunction Order, defendants would have to pay the remaining fee

award. In addition, Berk agreed that if she breached, she would pay plaintiffs

$400,000. Those damages were defined in the Settlement Agreement as "Breach

Damages" and "Berk Breach Damages."

      After finding that Goldberg and Berk both willfully violated the

Injunction Order and Settlement Agreement, the trial court awarded plaintiffs

the "Breach Damages" and the "Berk Breach Damages." We discern no error in

that ruling.

      Defendants argue that the award is excessive since it is in the millions of

dollars. The short and complete answer to that contention is that defendants

agreed that those would be the damages if they breached the Injunction Order or

Settlement Agreement.      Moreover, defendants agreed that plaintiffs were

entitled to $3,500,000 in costs and fees based on the jury verdict.

      In addition, the trial court had the authority to enforce the terms of the

Settlement Agreement in the context of plaintiffs' Rule 1:10-3 motion because

                                                                           A-1076-19
                                      22
the Settlement Agreement was expressly intertwined with the court's Injunction

Order. See Wasserman's Inc. v. Twp. of Middletown, 

137 N.J. 238

, 252-53

(1994) (citation omitted) (explaining        stipulated damages clauses are

presumptively reasonable and enforceable). In that regard, the facts here are

distinguishable from our holding in Haynoski v. Haynoski, 

264 N.J. Super. 408

,

414 (App. Div. 1993). Haynoski involved a private settlement agreement not

incorporated into a court order or judgment before the aggrieved party brought

a Rule 1:10 application. 

Ibid.

 In contrast, the Injunction Order here resulted

from the jury verdict in favor of plaintiffs and the Settlement Agreement. The

Settlement Agreement expressed the parties' consent to the entry of the

Injunctive Order; thus our decision in Haynoski, which disallowed counsel fees

on a motion to enforce an unincorporated settlement agreement, is inapplicable.

Ibid.

        In addition to the Breach Damages, the trial court also properly awarded

plaintiffs attorneys' fees and costs in connection with the Rule 1:10-3 motions.

Rule 1:10-3 expressly authorizes the trial court to make a fee award. Moreover,

where a party's violation of the order is willful, a fee award is also permissible.

Hynes, 297 N.J. Super. at 57; In re N.J.A.C. 5:96, 221 N.J. at 18 (allowing

sanctions when a party willfully failed to comply with a court order).


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      4.    The Ban on Incorporating or Leading Non-Profits

      The trial court barred Goldberg and Berk "from incorporating or serving

as officers, directors or trustees . . . of any tax-exempt entity incorporated in or

having any operations in New Jersey." Defendants argue that the court erred

because the additional prohibition is not limited to organizations that are

connected to conversion therapy and it violates their constitutional rights to free

association. Amici also contend that the bars are unconstitutionally restrictive.

      In its opinion on plaintiffs' second motion, the trial court reviewed the

record and found that defendants breached the permanent injunction through

their incorporation and operation of JIFGA. As a partial remedy for that breach,

the court enjoined Goldberg and Berk from serving as directors or officers of

any tax-exempt entity incorporated in New Jersey. After defendants moved for

reconsideration, the court modified the limitation and allowed Goldberg to

continue to serve as a president and board member of three specific

organizations.

      We reject defendants' and amici's arguments that the limitations are not

directly related to Goldberg and Berk's prior breaches of the Injunction Order

and Settlement Agreement.       To the contrary, the trial court designed that

restriction to prevent Goldberg and Berk from further violating the Injunction


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                                        24
Order and Settlement Agreement. That ruling is consistent with the CF Act,

which expressly allows injunctive relief. N.J.S.A. 56:8-8. Accordingly, we

discern no abuse of discretion, nor do we find that the court exceeded its

authority under Rule 1:10-3.

      Furthermore, as already noted, the constitutional arguments were not

raised before the trial court, and we therefore decline to address them for the

first time on appeal. Nieder, 62 N.J. at 234.

      In summary, we affirm the trial court's June 10, 2019 order. To the extent

that we have not expressly addressed certain arguments raised by defendants and

amici, we deem them to be of insufficient merit to warrant discussion in a written

opinion. R. 2:11-3(e)(1)(E).

      Affirmed.




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                                       25

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