United Federation of Churches LLC v. Johnson et al
|United Federation of Churches LLC v. Johnson et al|
|Original Jurisdiction||US District Court for the Western District of Washington|
|Plaintiff||United Federation of Churches LLC|
|Defendant||David Alan Johnson, Nathan Sullivan, Leah Fishbaugh, Mickey Joshua Powell (formerly Mickey Meehan)|
United Federation of Churches LLC v. Johnson et al is an ongoing federal court case filed April 3, 2020, by the for-profit corporation United Federation of Churches LLC d/b/a "The Satanic Temple," against four former members of the religion The Satanic Temple who had previously been members of the religion's local chapter based in Seattle, WA.
The defendants have characterized the case as an example of a SLAPP or "Strategic Lawsuit Against Public Participation", an opinion shared by other legal analysts who have reviewed the suit and observers who have seen the Temple's subsequent legal action and threats against other critics. The Satanic Temple and its supporters dispute this characterization, considering it defamation they are willing to sue over, which they have followed through on at least twice.
On January 9, 2023, the judge granted a final motion to dismiss in accordance with FRCP 12(b)(1) (lack of subject matter jurisdiction).
On January 24, 2023, The Satanic Temple filed a notice of appeal of this judgment.
In its original filing, The Satanic Temple levied five complaints against the defendants, alleging two violations under federal law and three under Washington State law:
- Computer Fraud and Abuse Act (CFAA)
- Cyberpiracy per USC 1125(d)
- Tortious interference with business expectancy
- Violation of Washington's Consumer Protection Act
- TST claimed that the defendants were previously authorized administrators of the Washington Chapter's social media, and that the contours of this authorization were detailed by a "Membership Agreement and Code of Conduct" which was allegedly signed by all four defendants. Defendant Sullivan allegedly possesses the sole copy of these signed agreements. TST claimed liability under the CFAA due to Johnson's alleged removal of all other administrators over the Chapter page, Powell's alleged removal of all administrators besides the Defendants over the Allies page, and Fishbaugh's alleged changing of the password and recovery email and phone number over the Chapter's Google-based email account. All of these actions allegedly "exceeded authorization" granted under the Code of Conduct.
- At the time of Johnson's alleged posting of the "manifesto" on the Chapter page, the page itself was findable under the URL "facebook.com/TheSatanicTempleWashington." TST claimed that because it has the exclusive rights to the name "The Satanic Temple," this was actionable cyberpiracy under USC 1125(d).
Tortious interference with business expectancy:
- TST claimed that the defendants intentionally severed the business relationship between TST and Facebook by misappropriating the Facebook pages, with the alleged purposes of harming the Washington Chapter and forming a competitor organization.
Violation of Washington's CPA:
- TST claimed that the Chapter and Allies page utilized trademarks registered by TST, and that its intellectual property included "trade secret materials including membership listings, membership agreements, internal policies and procedures, other governance materials, and access to a hard-won social media following." TST claimed that the utilization of this intellectual property to create an alleged competitor organization constituted "unfair or deceptive acts or practices in the conduct of trade or commerce" per RCW 19.86.
- TST claimed that Defendants falsely ascribed "extremist ideologies and affiliations" to TST, by way of Johnson's manifesto allegedly accusing TST leadership of being "cozy with the alt-right, [and being] white supremacists," as well as by way of Johnson utilizing the Chapter page to post commentary and links "with the general and false theme that TST leaders are incompetent fascists."
- Curiously, TST also accuses Johnson of tying TST to extremism by way of following a number of unspecified "extremist" groups on the Chapter's Twitter account, and by changing its profile description to “Satan stands as the ultimate icon for selfless revolt. We oppose irrational, unjust hierarchies like white supremacy, patriarchy, ableism, & cishet normality.”
All complaints were dismissed on February 26, 2021. From Judge Jones' ruling:
This claim fails for one reason. The “domain in question” is not in fact “facebook.com/TheSatanicTempleWashington.” The “domain name” is “facebook.com.” And The Satanic Temple does not claim to own it. Its trademark lies in the post-domain path, which does not constitute a “domain name” under the ACPA. As explained above, the statute defines the term “domain name,” and the case law provides further clarification. The Satanic Temple’s claim fails under both. In reverse order, cases in this circuit explain that there are two parts to a domain name, a top-level and a second-level. Post-domain paths are not included in that combination. Here, the top-level is “.com,” and the second-level is “facebook.” The Satanic Temple’s trademark is contained in neither.
As to these elements, The Satanic Temple’s allegations fall short. It does not allege that Defendants knew about the Facebook pages’ pecuniary value or knew that there was some business arrangement between Facebook and The Satanic Temple. At best, it alleges that “Defendants had subjective knowledge of the business relationship.” This conclusory recitation of the second element is insufficient to state a claim. Likewise, The Satanic Temple does not allege that the interference was wrongful beyond the interference itself—no alleged violation of a statute, regulation, common law rule, or professional standard.
Washington's Consumer Protection Act:
The parties argue only a few of the CPA elements. Defendants say that The Satanic Temple has failed to allege that the unfair or deceptive acts here occurred “in trade or commerce,” given that neither party sells assets or services. The Satanic Temple, on the other hand, argues that “[c]ommerce is implicated by the stolen Facebook pages because they have an economic value” to The Satanic Temple. The Court need not settle that dispute. To state a CPA claim, The Satanic Temple must allege all five elements. One element, unaddressed by either the parties’ briefing or the complaint, is that an unfair or deceptive act must “affect the public interest.” On this score, all The Satanic Temple alleges is that Defendants “deceive[d] the public with a deliberate, willful intent to disparage or pass off competitor services as those of T[he Satanic Temple].” This conclusory allegation fails to satisfy the third CPA prong. It fails to allege that “other plaintiffs have been or will be injured in the same fashion.” And the other four public interest facts are equally unaddressed.
The first four complaints were dismissed with leave to be amended and brought forth in a revised complaint. However, the defamation allegation was dismissed with prejudice on the grounds that adjudicating it would run afoul of the establishment of church and state. From Jones:
The Court agrees with Defendants. The doctrine of ecclesiastical abstention applies. The Court may not resolve the defamation claim without delving into doctrinal matters. To determine whether Defendants’ statements were defamatory, the Court or jury must inevitably determine that the statements were false. That would require the Court or jury to define the beliefs held by The Satanic Temple and to determine that ableism, misogyny, racism, fascism, and transphobia fall outside those beliefs. That the Court cannot do without violating the First Amendment.
Motion for Reconsideration
On March 21, 2021, TST filed a motion to have the dismissals of the ACPA and defamation claims reconsidered. TST argued that because Facebook allows users to obtain accounts with unique electronic addresses, Facebook should be considered a domain name registration authority within the meaning of the ACPA.
In regards to its defamation claim, TST argued that the court was obligated to accept TST's determination of its own doctrines, and that this dispute could be resolved "on purely secular rules" by the court "treating TST like it would any other organization."
Judge Jones, however, pointed out that "the principle that a court must “accept as a given” a church’s own determination of its doctrine applies where the plaintiff challenges a church tribunal’s application of its own rules—not where the church is the plaintiff suing another party."
This motion for reconsideration was denied on April 12, 2022.
On March 29, 2021, in keeping with the freedom to amend its complaints granted in the wake of the first dismissal, TST filed its first amended complaint. However, shortly afterward, it sought leave to amend this complaint further. During a procedural conference of the counsels for both parties, the Defendants agreed not to contest the filing of the second amended complaint, on the provisos that the Defendants retained the right to respond to it with a motion to dismiss, as well as the stipulation that nothing changed between the first and second amended complaints except the introduction of a new trademark dilution claim.
TST's Second Amended Complaint (SAC) was filed on May 24, 2021. TST decided to drop its ACPA and CPA complaints rather than amend their defects. The SAC allegations are as follows:
- Computer Fraud and Abuse Act (amended)
- Tortious interference with business expectancy (amended)
- Trespass to chattels and conversion (note: trepass and conversion are ordinarily two separate allegations, but under Washington law, they differ by a slight enough degree as to be discussed jointly by the judge below)
- Trademark dilution per Federal Trademark Dilution Act, USC 1125(c) (new)
- Previously, TST had alleged that the defendants' use of the Facebook pages exceeded their authorization. The SAC now alleges that the removal of the Defendants from TST's local advisory board and membership implicitly also revoked their authorization to manage TST's social media, and that Johnson's subsequent access to the Chapter page after the alleged revocation constitutes a "hacking" of this page under the CFAA. TST alleges that the attempted unsuccessful "hacking" of the Twitter and Google accounts were similarly hackings subsequent to the alleged revocation of authorized access.
- In the initial complaint, Judge Jones ruled that the second and fourth elements of this allegation were insufficiently-argued - that TST failed to show that the defendants had knowledge of the business relationship between Facebook and TST, or that the defendants' interference was driven by "an improper purpose or used improper means." TST's amended complaint alleged the defendants "had subjective knowledge of the business relationship between Facebook and TST," and alleged more explicitly that the interference was for the improper purpose of "harming the Washington Chapter, and TST at large, and creating a competitor organization."
Trespass to chattels and conversion:
- TST alleged that the Defendants intentionally dispossessed TST of the Chapter and Allies pages and removing TST's authorized administrators, depriving TST of possession or use of them. TST made the same allegation regarding unspecified "membership-related documents," alleging that Sullivan in particular maintains exclusive control over them.
- TST alleged the existence of a competitor organization titled "The Satanic Temple 2: Electric Boogaloo," claiming that it had a likelihood of impairing the distinctiveness of "The Satanic Temple" as a famous trademark.
- TST alleged that alternatively, statements made by Defendants' alleged competitor organization were liable to divert potential members away from TST by affiliating itself with politically "extremist" organizations and suggesting that TST is associated with "Antifa," theoretically jeopardizing both TST's reputation and tax-exempt status as a church, as well as jeopardizing the civil rights of TST's membership base.
- TST alleged further that there is merchandise being sold by Defendants featuring "derivative marks" and which are advertised on TST's Allies page.
On April 15, 2022, Judge Jones issued an order granting a mixed dismissal of the allegations of the SAC, granting leave to amend the federal complaints within a narrow scope, while allowing the state-level claims to proceed.
Because TST does not allege that it suffered damage or loss due to misappropriation of the Twitter account—only that it “would have” suffered a loss if the misappropriation were successful—it cannot meet the threshold requirements for bringing a civil action based on the Twitter account. Therefore, the court GRANTS Defendants’ motion to dismiss TST’s CFAA claims based on alleged interference with its Google and Twitter accounts.
...TST alleges only that it revoked administrative access to the Chapter page and the Twitter and Google accounts, and its March 23, 2020 letter refers only to the Chapter page. TST thus has not plausibly alleged that Defendants’ access to the Allies page was “without authorization” within the meaning of the CFAA. Similarly, TST states no basis for a CFAA claim against Mr. Meehan, Ms. Fishbaugh, or Mr. Sullivan. It makes no allegation that any of them were involved in the alleged “hacking” of the Chapter page or obtained or altered information on that page in violation of 18 U.S.C. § 1030(a)(2). Accordingly, the court DISMISSES TST’s CFAA claim to the extent it is based on the Allies page and to the extent it is asserted against Mr. Meehan, Ms. Fishbaugh, and Mr. Sullivan.
...The court concludes that TST has plausibly alleged that it suffered “loss” due to the loss of its members, which in turn was caused by Mr. Johnson’s actions. TST, however, leaves the court no basis to allocate its alleged losses between those due to a temporary “lost ability to communicate” (which are not cognizable) and the loss of its members...Accordingly, the court GRANTS Defendants’ motion to dismiss TST’s CFAA claim based on Mr. Johnson’s “hacking” of the Chapter page.
The court concludes that TST has, with its second amended complaint, plausibly alleged that Defendants had knowledge of the business relationship between Facebook and TST...With respect to the fourth element, the court concludes that TST has sufficiently pleaded that Defendants acted with an improper purpose—to harm the Chapter, create a competitor organization, and divert donations to that competitor. Although Defendants are correct that the “improper means” prong of the fourth element requires a violation of a “statute, regulation, common law rule, or professional standard,” the “improper purpose” prong bears no such requirement....Because TST has now plausibly alleged facts to support each element of its tortious interference with business expectancy claim, the court DENIES Defendants’ motion to dismiss the claim.
Trespass and conversion of chattels:
Defendants contend that TST has failed to allege either (1) damages flowing from Defendants’ trespass to or conversion of the Chapter page, or (2) facts supporting its entitlement to prospective injunctive relief. The court agrees with Defendants. To state a claim for prospective injunctive relief, a plaintiff must plausibly allege an imminent future injury...Because TST has not done so here, the court DISMISSES its trespass and conversion claims based on Defendants’ interference with the Chapter page. The court concludes that Defendants’ cited cases stand for the proposition that the plaintiff’s demand for return of originally lawfully held property and the defendant’s refusal to do so are sufficient—but not required—to prove the “taking or unlawful retention” element of a conversion claim...Because Defendants’ motion to dismiss TST’s claims for trespass to or conversion of the Allies page and documents is based solely on the erroneous contention that TST was required to specifically plead a demand to return and a refusal to return, the court DENIES the motion to dismiss TST’s trespass and conversion claims on that basis.
Trademark dilution and blurring:
Defendants are correct that TST has failed to allege any commercial use by Defendants of its trademark. Indeed, the only mentions of the phrase “The Satanic Temple 2: Electric Boogaloo” in the second amended complaint are in paragraphs alleging that Defendants “provisionally” used that phrase as the name for their alleged competitor organization; it makes no factual allegations that would allow the court to draw the plausible inference that such an organization exists. And the only mention of the phrase in TST’s exhibits to its second amended complaint is what appears to be a third-party comment on Mr. Sullivan’s Facebook page proposing possible names, including “The Satanic Temple 2: The Second One” and “S2: The Mighty Satanists.”...Because TST fails to plausibly allege that Defendants are making a commercial use of TST’s famous or distinctive mark, its FTDRA claim cannot survive. The court GRANTS Defendants’ motion to dismiss TST’s FTDRA claim.
The deadline for TST to file an amended complaint addressing the permitted deficiencies was 11:59pm on April 29, 2022. TST elected not to file an amended complaint. Nor did they file for a deadline extension to file an amended complaint. Consequently, while the state law allegations were permitted to proceed to discovery, the federal allegations remained dismissed, exposing TST to a motion to dismiss under FRCP 12(b)(1) - lack of subject matter jurisdiction.
U.S. District Judge Richard Jones dismissed the original complaint on Feb. 26, 2021, but allowed The Satanic Temple to refile on all but one of the initial claims (defamation).
The Plaintiff filed a motion for reconsideration on the defamation claim and cyberpiracy claim dismissal in March 2021, which was denied and the dismissal reaffirmed in April 2022. The Plaintiff also amended their complaint twice, first in May 2021 then again in June 2021 after being informed that the Facebook page the Temple was demanding returned had been in TST's possession since May 2020. The Defendants made motions to dismiss the case for each of these complaints, and in April 2022, the Judge Jones granted the operative motion in part with leave to amend for several of the dismissed complaints.
However, The Satanic Temple did not amend their complaint for this third time by the deadline given, and in May 2022, the defendants made a motion to dismiss the case for lack of federal jurisdiction on the surviving claims. While working on his reply to this motion, TST lead counsel Matt Kezhaya went onto Reddit for an "Ask Me Anything" about his sanctioning in an unrelated case. In that, Kezhaya did address the Johnson case several times, stating in the original version of his post:
I will not answer any questions related to the idiots that call themselves “QueerSatanic,” or their idiot-conspiracy theories. My only comment on that topic is: I can’t believe you morons have spent more than $80,000 fighting to keep TST’s Facebook page. You are pathetic. You have no concept of civil liberties, or what is at stake by the ever-encroaching theocracy. Your lawyer is a gentleman and a scholar. I hope he squeezes every last penny from you living corpses, and anyone that gives you the time of day.
Despite acknowledging it would be unwise to talk about an ongoing lawsuit, Kezhaya went on to elaborate on his strategy in the case in response to several people's questions, stating:
I wanted some federal statutes to apply because that would maximize TST’s damages, would keep us in Federal court (as opposed to State court), and provided the option to collect attorney’s fees for having to litigate this.
And writing in part:
All three surviving claims are questions of Washington State law, not Federal law. Defendants have moved for dismissal from Federal Court because, they argue, TST cannot show that there is an “amount in controversy” of at least $75,000 (which is required for Federal jurisdiction). I have announced resistance to the motion. I need to come up with a credible justification that it is not-impossible a jury could legally award at least $75,000 in damages. Since punitive damages are on the table, that really means I really only need to justify $12,500 in out-of-pocket damages. Punitive damages can be up to 6x compensatory damages (out-of-pocket losses). I’ve been mired in Belle Plaine since they filed the motion, so I haven’t yet had an opportunity to evaluate the damages.
In June 2022, this material was then included by the Defendants in a response regarding the motion to dismiss for lack of subject matter jurisdiction.
While waiting for the judge to rule on the motion to dismiss for lack of federal jurisdiction, on November 23, 2022, The Satanic Temple submitted a motion for a preliminary injunction on another Facebook page: Evergreen Memes for Queer Satanic Fiends. This was an unorthodox legal strategy both because it came two and a half years into the case rather than at the beginning as expected of a preliminary injunction and also because TST lead counsel had before filing been informed of and shown evidence that local representatives of The Satanic Temple had relinquished claims over that very social media page, both in writing and publicly in March 14-15, 2020, before the lawsuit ever began.
TST Washington Media Liaison Paul M. Case ("Tarkus Claypool") sent an email March 14, 2020, with the subject line “Evergreen Memes for Queer Satanic Fiends”, saying:
I saw that you made some changes to the TST WA State Allies FB group. I just wanted to let you know that it’s yours free and clear and we’ve no desire to claim it. You and ADJ built it and have done a great job doing so. I’m confident you’ll both continue doing awesome work.
Sorry the way things panned out, and I do mean all of it. I wish you and your family well, and respect your need to fight the fight your way.
-Tarkus Claypool Media Liaison, The Satanic Temple of Washington (he/him)
The next day, in a March 15, 2020 online town hall meeting via Zoom, Media Liaison Case/Tarkus Claypool again publicly reiterated in front of TST-WA members, including TST Chapter Head, Leah Garvais ("Siri Sanguine"), that TST-WA had no interest in claiming the Memes Page:
I do want to say that we’re not going to, you know, ask Lenore to give the page back in any way. I wish them well, and I hope that they continue growing that and make it a great success. Because they’re going to fight their fight, their way. And so, let them do what they want to, and I wish them well, because both Lenore and ADJ [Johnson] did a wonderful job in the roles that they had. It just wasn’t within the TST guidelines that we are beholden to. So I want to give them due credit, and just you know, wish them well with what they’re going to plan to do with it in the future.
Despite having access to this information since before the beginning of litigation, and being made aware explicitly in June 2022, The Satanic Temple continued to repeat the assertion in and outside of court that a Facebook comment afterward by a third person, Nathan Sullivan — referencing this change in administrator rights by others in regards to a Facebook page he'd never had access to — was an admission of a crime.
On Jan. 6, 2023, Judge Jones granted the motion to dismiss the case for lack of federal jurisdiction, denying the Plaintiff's motion for a preliminary injunction at the same time.
On Jan. 24, 2023, The Satanic Temple notified the court they intended to appeal their federal district court loss to the Ninth Circuit and subsequently stated they planned to re-file their remaining claims in Washington State court as well.
Ninth Circuit Court of Appeals
- GoFundMe.com, Legal Fund for Victims of Satanic Temple
- Newsweek.com, "Orgies, Harassment, Fraud: Satanic Temple Rocked by Accusations, Lawsuit" The defendants say the case has devolved to a meritless S.L.A.P.P. (Strategic Lawsuit Against Public Participation) lawsuit as a way to bankrupt them for speaking out.
- Social Actuality, "Schism – The Satanic Temple, a Lawsuit, and the Necessity of Clear Minded Settlement", Jan. 18, 2022 (last updated April 20, 2022) While I may question the wisdom of some of the defendant’s actions, I also question TST’s bringing of plainly frivolous claims (for which the public also suffers harm, as even frivolous claims require precious court resources to litigate) and their general litigation tactics. For example, why weren’t the Dilution and Trespass to Chattels/Conversion claims pleaded in the initial complaint? It seems clear to me that nothing was preventing those claims from being pleaded at that time, so why wait? It creates the impression that TST is not legitimately seeking remedies for any harm caused, but is instead employing litigation in a “process as punishment” tactic to sap the defendants resources and induce what I’m sure is a significant amount of stress into their day-to-day lives. By dragging the defendants through the civil court system, TST may simply be attempting to get back at the defendants in a tit-for-tat conflict which has now spanned the course of 21 months and counting.
- Mike Dunford (@questauthority), Twitter.com, April 26, 2022 I read The Satanic Temple’s complaint on stream tonight. It’s been a while since I was so irate about a case. The complaint itself is SLAPPy as hell; the claims are embarrassingly weak. And, in my view, uses litigation to dox and harass former members. And, to be clear, it’s not even harassing and doxing former members who are parties to the suit; it’s doxing and harassing former members who were sources in the article it’s suing over. This is a bad lawsuit. The lawyers who filed it are bad for filing it. And they should feel bad about themselves. I read the Newsweek article that TST is suing over. That made me think that they were an organization having a commonplace internal splat. Their complaint in the suit made me think that their leaders are vindictive little turdbuckets who should be ostracized from polite society.
- The Satanic Temple, Inc. v. Newsweek Magazine LLC, Complaint, Feb. 16, 2022 45. The article states: “Meanwhile some members wondered why an organization like TST would go after four Seattleites with very modest means while it had bigger fish to fry elsewhere.” Exhibit 1 at 13. Together with the rest of the article, this statement implies that TST’s lawsuit against the Johnson defendants is rooted in a greater policy to harass dissenters, to the exclusion of being rooted in a fiduciary obligation to safeguard TST’s property. This statement and its implications are false and defamatory as follows. 46. It is false to assert that TST harasses dissenters, either as a general policy or specific to the Johnson defendants. The Johnson lawsuit would never have happened if they had simply returned TST’s property upon demand. 47. The assertion is also defamatory. It urges the public to refrain from associating with TST for fear that they will be the next target of harassment and to refrain from donating to TST for fear that the funds will be wasted on a frivolous lawsuit.
- Satanic Temple, Inc v. Jessica Snow, Complaint, filed Nov. 23, 2022 11. Similarly, Defendant Snow stated that TST “is suing former members to make them be quiet about the stuff they experienced while in the Temple.” In fact, TST sued some former members because they stole property from TST and – using that stolen property – channeled provably false and harmful statements to TST’s members to divert funds from those members to a new competitor organization. This is defamatory because it inaccurately paints TST as an abusive organization and tends to diminish the public trust in TST as a religious organization
- Order on Motion to Dismiss — Document #20, February 26th, 2021.
- Order on Motion for Reconsideration — Document #30, April 12th, 2022
- Amended Complaint — Document #26, May 24th, 2021
- Response to Motion — Document #28, June 28th, 2021
- ~Util - Set/Reset Deadlines/Hearings AND Order on Motion to Dismiss — Document #31, April 15th, 2022
- Dismiss — Document #33, May 14th, 2022
- r/SatanicTemple_Reddit post "TST Court Update! (May 26, 2022) -- this one is by TST's lawyer", May 26, 2022
- r/SatanicTemple_Reddit comment, May 26, 2022
- r/SatanicTemple_Reddit comment, May 26, 2022
- Reply to Response to Motion — Document #37, June 10th, 2022
- Preliminary Injunction — Document #42, November 23rd, 2022
- Response to Motion — Document #43, December 13, 2022
- Declaration — Document #44, December 12th, 2022 (Page 26, email sent Sat, Mar 14, 2020 at 9:09 PM)
- GoFundMe.com, The Satanic Temple -Theft & Defamation Legal Fund, July 17, 2020
- Exhibit 5 — Document #26, Attachment #5, May 24th, 2021. (Facebook post and comments from March 15, 2020) Nathan Sullivan: we have a meme page here that we stole from TST: Evergreen Memes for Queer Satanic Fiends and a small group of regional satanists that we're using as a sort of safe space and social club. I imagine i'll be setting up another Discord for us too An uninvolved person asks: But the question is, will you found an actual organization The Satanic Temple 2: Electric Boogaloo? The Satanic Temple 2: The Second One? S2: The Mighty Satanists? Nathan Sullivan replies: Satanism Reloaded actually
- Declaration — Document #46, December 12th, 2022 (Page 19-20)
- Order on Motion for Preliminary Injunction AND Order on Motion to Dismiss — Document #48, January 6th, 2023
- Court of Appeals for the Ninth Circuit Document #2, February 1st, 2023 Currently there are no proceedings remaining below, nor are there currently any related proceedings in other tribunals on this matter. To preclude any statute of limitations issues, Plaintiff intends to refile the State claims which survived 12(b)(6) scrutiny and stay the case pending the outcome of this appeal; however, that has not happened yet.