United States District Court, S. D. New York.

“ A loss of future income as a forensic expert is not compensable under RICO by anyone involved in discrediting the expert's testimony and views any more than it is compensable against the court involved. ”

“ That evidence of coercive persuasion was not admitted in Fishman (and in several actions since then) does not mean that the academic or legal debate must cease. The First Amendment will continue to protect plaintiffs', as well as defendants', assertion of their views regardless of the seemingly overly zealous efforts of defendants or the so-called cults they allegedly seek to protect. ”

“ Plaintiffs allege injury to their business in terms of loss of income as a result of injury to their reputations as forensic experts. (Am.Compl. ¶¶ 274, 276.) This Court finds the causal link between defendants' alleged acts and plaintiffs' alleged injury to be too attenuated. [6] It is simply absurd to attribute plaintiffs' alleged injury primarily to the Fishman court's conclusions, which in turn resulted from a full adversarial evidentiary hearing and briefing. ”

“ Town of West Hartford, 792 F.Supp. at 168 (defendants' "overarching motive" is not to make money, but to stop plaintiff from performing abortions) . Similarly, the fact that plaintiffs here may lose income or that various organizations may be spared civil liability costs is incidental to defendants' alleged objective of discrediting coercive persuasion. As the court concluded in Scheidler, it seems unreasonable under Ivic to equate economic effect on the plaintiffs or third parties with economic motive. ”

“ Defendant Stark was aware of the lawsuit prior to being served himself; he was also aware that a joint motion to dismiss had been filed by the other defendants. The tardiness of service upon him and the fact that he had not previously been party to litigation contributed to his mistake that he was "covered" by the joint motion to dismiss and that he need not respond individually. (Lieberman Aff. ¶¶ 5-6.) Upon receiving plaintiff's motion seeking entry of default judgment, he promptly consulted an attorney, realizing that he might need to respond individually. ”

“ However broadly RICO's language and purpose could be extended, to apply RICO to the circumstances alleged here would be beyond any reasonable application in light of Ivic and Bagaric. Assuming that plaintiffs have plead an "enterprise," [2] the enterprise clearly lacks an economic motivation. In the first paragraphs of the Amended Complaint, plaintiffs define the objectives of defendants' enterprise. [3] Defendants' alleged motivation was to discredit plaintiffs' theory of coercive persuasion in order to protect from civil liability the Unification Church and other organizations. ”

“ Even if it were possible to consider plaintiffs' allegations in conjunction with Judge Jensen's conclusions in Fishman and conclude that Judge Jensen was somehow "duped" by defendants' improper acts (and, in this Court's view, it is not possible to do so) , [7] no RICO causation could be shown. Defendants' acts did not proximately cause plaintiffs' alleged injury. The diligent efforts of some (though not necessarily all) of the defendants to discredit plaintiffs' theories did not legally "cause" their loss of income any more than Judge Jensen did. ”

“ This is a case where evidence concerning the nature of the RICO enterprise also served to prove the existence of a pattern of racketeering activity. Facts external to the predicate acts--the three murders--were essential to prove relatedness and the threat of continuity. [Defendant] committed murders which were critical to the [Commission of La Cosa Nostra's] achieving its goal of resolving family leadership disputes; these were not "isolated acts of racketeering activity." ”

“ As discussed supra and infra, defendants alleged violation of mail fraud, wire fraud and obstruction of justice statutes was part of an allegedly intricately interrelated set of actions whose common objective was to discredit plaintiffs' theories. Economic motivation as to any of the predicate acts is absent. ”

“ Several defendants, Malony, Anthony, Richardson, Stark and London, allegedly used the conspiracy as a means for financial gain. (Am.Compl. ¶ 4.) Over a seven year period, defendants allegedly conspired to attempt to obstruct justice in several court proceedings by improperly influencing those proceedings, obstructing justice, deceiving judges, committing wire, mail and common law fraud, acting negligently, and defaming plaintiffs so as to foreseeably injure them. ”

“ Defendants are correct to note that any of plaintiffs allegations relating to statements made in the course of judicial proceedings (there are certainly several such statements) are privileged and cannot be the basis of a RICO cause of action. Under California law, presumably relevant to both the Molko and Fishman actions, any communication made in judicial or quasi-judicial proceedings by litigants or other participants authorized by law to achieve the objects of the litigation and that have some connection or logical relation to the action are privileged. ”

“ United States v. Ferguson, 758 F.2d 843 (2d Cir.) , cert. denied, 474 U.S. 841 (1985) , plaintiffs' RICO allegations cannot stand. As developed in Ivic and Bagaric, the "enterprise" requirement should be read in conjunction with §§ 1962 (a) and (b) , which leads to the conclusion that when neither the enterprise nor the racketeering acts are economically motivated, there can be no RICO violation. ”

“ Due to DIMPAC's existence, Goodstein, Fowler and EF & B concealed information regarding the Molko brief in soliciting the APA Executive Council's approval of the brief. Defendants allegedly failed to make clear the nature and purpose of the filing and that the defendants were seeking a ruling by the court as to the lack of scientific acceptance of Singer's proposed testimony on coercive persuasion. (Id. at ¶ 69.) Goodstein concealed that he was on Lifespring, Inc.'s National Advisory Board. ”

“ Letters to D'Antonio against Ofshe and in furtherance of the conspiracy against Singer and Ofshe were received from Richardson, Malony and Stark. (Id. at ¶¶ 162-167.) In August 1989, the ASA withdrew its appearance as amicus, allegedly misrepresenting to the Court its reasons for doing so when it stated that it withdrew for reasons of internal procedure. (Id. at ¶ 196, 198-200.) ”

“ In fact, the members of this alleged enterprise sometimes defrauded other members and sometimes frustrated the enterprise's objective, such as when the APA dismissed Malony's ethics complaint against Singer. ↑ FN3. These paragraphs read:
1. Plaintiffs individually and jointly contend that the defendants individually, jointly and in various combinations acted and conspired to defame and destroy [plaintiffs'] reputations as professionals and their reputations as forensic experts in the areas of psychology and sociology synonymously described as thought reform or coercive persuasion. ”

“ In this Court's view, the superior basis for doing so--in essence, going to the heart of the problem of plaintiffs' attempt to bring their claims under RICO-- was mentioned by defendants only in a footnote of their Reply Brief. (See Defs.' Reply at 17 n. 6.) On the basis of a line of Second Circuit cases beginning with United States v. Ivic, 700 F.2d 51 (2d Cir.1983) , and United States v. Bagaric, 706 F.2d 42 (2d Cir.) , cert. denied, 464 U.S. 840 (1983) , and still followed by this and other circuits, see e.g., National Organization for Women v. ”