CMI/AiG lawsuit update

Answers in Genesis (AiG) sent out a new letter to supporters dated July 23, 2008, and is distributing copies of court filings in the United States regarding their attempt to force Creation Ministries International (CMI) into arbitration and override the lawsuit CMI filed in Australia. An AiG supporter contacted me in email and sent me one of those documents, a motion that AiG filed in U.S. court arguing for arbitration (PDF). (Is there any significance to the fact that it is dated April 1, 2008?) He didn't sent me the other documents, which include CMI's reply to AiG's motion, AiG's response to CMI's reply, and CMI's argument filed with the Canadian Intellectual Property Office to oppose AiG's attempt to register "Answers in Genesis" as a trademark there. These documents are hosted at http://66.42.196.216:50050/arbitration.htm and each PDF has the password "john17"; my copy of the AiG motion PDF, linked above, has no password.

The AiG filing argues that CMI is the organization that has behaved unreasonably, that CMI has rebuffed attempts at reconciliation, and that Carl Wieland is the one who was trying to take over AiG internationally, not Ken Ham. It argues that the arbitration clauses in the agreement that CMI has issues with--the one signed in October 2005 by the Australian organization's directors who subsequently resigned en masse--are the key applicable clauses. They may have a good legal case, but their overall story seems to me to be at odds with a number of the facts set forth in CMI's detailed chronology of events (PDF). In that chronology, it was CMI that first attempted to argue for arbitration, while AiG ignored their attempts. CMI rejected the specific form and location of arbitration suggested by AiG, as that proposal required keeping the October 2005 agreement in place, when the content and manner in which that agreement was put into place is at the center of the dispute, and required that the arbitration occur in the U.S.

Perhaps most significantly, AiG reneged on the verbal agreement that was reached in Hawaii, saying in writing that it is "off the table." Instead, AiG says the parties agreed to return to Hawaii for another session if no written agreement was reached in a certain period of time--while ignoring the fact that it has made no attempt to reach such written agreement, suggesting that its verbal commitment was not genuine.

CMI has put up a new version of its web page of links to relevant documents, which includes the AiG July 23 letter from Don Landis and their response to it. Their main points of response to the Landis letter are to criticize it for omitting the following:

• AiG’s rejecting or ignoring every one of the straightforward models of Christian arbitration proposed
• That their wanting to have the organisation of their choice arbitrate was only after we had made it plain that if there were no settlement discussions, or Christian arbitration, we had no choice but to launch legal action due to our lawful (hence biblical, cf Romans 13) duties as directors (to have the legal snare their lawyers’ actions had placed around our ministry’s neck removed).
• That our early settlement proposals involved being ready to walk away, with them being allowed to keep the overwhelming bulk of what they had seized. We did not at that stage even request that they do the right thing as far as the magazine subscribers that were deceived in the US were concerned, we just assumed that in due course their consciences would make that happen — it has not happened.
• That by AiG-US seeking to force Christian arbitration to happen in the USA, rather than the countries we offered in the course of the matter (Australia, NZ, Hong Kong, Singapore) it is to their great legal and commercial advantage; including forcing us to spend a great deal more money, despite being the smaller ministry that has suffered the losses in all of this.
• That the jurisdiction their infamous entrapment documents mentions is the courts of Australia, yet they sought to block accountability in those courts and Australian Christian arbitration.
• That the alleged ‘agreement to arbitrate’ they rely upon has nothing to do with their unlawful actions in relation to the magazine.
• Even more importantly, that a settlement agreement was reached at a formal settlement meeting in August 2007, in Hawaii, between all the parties. Though Ken Ham did not appear, although we were told he would, the verbal agreement was reached with formal representatives of both organisations, was sealed with a handshake and a gentleman’s agreement to get it all down on paper urgently and end the matter — but AiG sought to subsequently shift the goalposts and in essence reneged on their commitment. And have since officially stated in writing that the Hawaii agreement is ‘off the table’.
• That they used false pretences to cause our trademark to lapse in Canada, so that theirs could get off the ground, allowing them to immediately use AiG-Canada — see next bullet point about the deceptive confusion this would cause.
• That at the Hawaii meeting, there was general understanding of the reason why the AiG trademark (we have owned that trademark in Australia all along) was important to our safety, which is why they agreed in Hawaii to not use it for several years here and in Canada, for instance. It is not because of wanting to stifle ministry, it is because they had already tried to demand that we hand it over, and had started a widely publicised attempt to get Australian supporters to enlist with them instead. We have NO problem with fair competition, but the law is there to protect against deceptive use of a mark. Our documentation shows how we were forced by AiG to change our name, and if they had then come into Australia or Canada under the old name, people would have been misled into thinking that this was us. I.e. this ministry spent many years building up a reputation under the name AiG. We have said all along that once sufficient time passes, it makes perfect sense to hand over the name rights to AiG, once people realize that these are two different organisations. The same is true for Canada — if we did not act to protect the organisation that used to be called AiG there, their frequently demonstrated desire to destroy that fledgling ministry would have meant that they could do it great harm.
• A major point is that they freely agreed in Hawaii to these temporary restraints on their use of the trademark in those countries.

There was supposed to be a court hearing in Australia yesterday, August 8--I haven't heard whether that occurred and, if it did, what happened, but I will report here when I do.

UPDATE (August 10, 2008): There are now 25 documents on the Answers in Genesis site, and passwords are no longer required for most documents. I've only begun reviewing the documents beyond the first five.

1. Court Order of August 8 (Granting AiG's petition to compel arbitration)


2. AiG’s memo in support of compelling arbitration
3. CMI’s response to AiG’s Motion
4. AiG’s reply to CMI’s response


5. CMI’s Australian lawsuit against AiG and Ken Ham
6. CMI’s Canadian legal opposition against AiG
   


7. Affidavit of John Thallon Thallon presents a case that Wieland wanted "democratic reform" that would give him more control of the overall organization and that the U.S. group was having issues with complaints from him, Gary Bates, and Jonathan Sarfati. This affidavit strikes me as an honest declaration of Thallon's perceptions of the controversy (though possibly with some self-deception) and is probably a good indication of how AiG-US sees its position. It doesn't comment on issues such as AiG-US's reneging on the verbal agreement in Hawaii, the specific terms of the October 2005 agreement, or the way in which AiG-US was deceptive about the continuing availability of the Australian group's publications to U.S. subscribers. There's a funny account of how Wieland became upset by AiG-US making changes to an Australian-authored article, changing the correctly spelled "toe the line" to the incorrect "tow the line." Thallon describes Wieland's reaction as unreasonable, but I'm sympathetic--it's very annoying when an editor introduces an error into an article, without checking with the author. Thallon claims in this affidavit that he was not pressured into signing the October 2005 agreement, but this is not consistent with the Briese report, which says that (a) "In the presence and hearing of the other Board directors and Paul Salmon, Thallon told Wieland the Board had no choice in the matter. If they didn't sign, he said, they faced a 'hostile separation' from AiG-USA. (The Board was firmly against a separation of the ministries.)" and (b) "Subsequently, Dr John Hartnett, an associate professor and volunteer speaker for CMI, telephoned Thallon to get answers for what had happened. Thallon said words to the following effect: 'We had no choice. If we didn't sign, Ken Ham would not have bought the next issue of the magazine.' (There were approximately 35,000 US subscribers to the magazine and the journal.)" (Thanks to Kevin Henke for identifying this contradiction.)
   
8. Affidavit of John E. Pence This affidavit, like the Thallon one, argues that Wieland was unhappy with Ham's leadership of AiG-US and was asking for changes in the organizational structure that the U.S. group did not want to make. I think this declaration makes a strong case that the U.S. and Australian groups needed to go their separate ways. I like the claim that Creation magazine was seen as becoming "too technical" for U.S. readers. Pence argues that the magazine distribution issue was caused by Wieland refusing to provide proofs until after the U.S. group purchased the next issue, and they refused to do so for fear that there was something in the magazine designed to "harvest" information from U.S. subscribers, which there was--but why would it be unreasonable for them to point U.S. readers to their new website if they wanted to renew subscriptions, since they rightly suspected the U.S. group was going to cut off distribution? In Wieland's response, he points out that he had relented and agreed to provide the proofs before payment was made. This declaration, unlike Looy's (below), enumerates specific statements by CMI that the author considers to be false and defamatory, such as that "AiG forced CMI to sign the MOA and DOCL, and that through such documents AiG took valuable property from CMI and attempted to take control over CMI" and that "AiG discontinued purchasing and distributing Creation magazine in bad faith and for purposes of harming CMI."
   
9. Exhibits 1-8
10. Exhibits 9-11
11. Exhibits 12-15
12. Exhibits 16-18 These exhibits include the report from the mediator in Hawaii, and letters from AiG and CMI's attorneys about the settlement and arbitration process. The impression I get is that CMI, more than AiG, was an obstacle to the settlement.
13. Exhibits 19-23 There are further documents here from AiG's U.S. attorney and from CMI's Australian attorney to AiG's Australian firm--again, these make CMI look like the bigger obstacle to settlement.
14. Affidavit of Mark Looy
    Looy accuses CMI of false and defamatory statements, but fails to identify even one such statement.
15. Affidavit of Walter Donald Landis Landis, chairman of the board of directors of AiG-US and lead pastor of Community Bible Church in Jackson, WY, speaks in generalities about the AiG/CMI disagreement, and makes accusations of falsehoods and defamation with little in the way of particulars to substantiate them. He says he wants to participate in any lawsuit, but due to health considerations (he had a heart bypass and prostate cancer, and has "severe anxiety concerning flying"), he can't travel to Australia. Landis' affidavit gives me the impression that he's a major ass.
    
16. Declaration of Kenneth Duncan MacDonald This declaration is from an Australian attorney who has served on multiple corporate boards as to the legitimacy of the October 2005 documents, the MOA and DOCL. He argues that, given the information he has and a few assumptions he enumerates, that these are validly executed documents.
    
17. Declaration of Simon Fisher Another Australian attorney and law professor, this one hired by CMI. He enumerates deficiencies in the MOA and DOCL, and argues that they result in making several provisions of the MOA unenforceable, and putting the status of the MOA as a whole in doubt. He argues that there were transfers from CMI to AiG in the agreement without remuneration and that the board did not appear to consider "the interests of its members as a whole when entering into the MOA and DOCL." He also responds to specific arguments of MacDonald.
    
18. Declaration of Carl Wieland This document contains point-by-point responses to the declarations of Thallon, Pence, Looy, and Landis. There's an error in paragraph 154 where it says "Don Landis Ham"--I believe it means Landis, not Ham.
    
19. Exhibit 1
20. Exhibit 2
21. Exhibit 3
22. Exhibit 4
23. Exhibit 5
24. Exhibit 6
25. Exhibit 7


26. CMI AiG dispute historical docs This document is a PDF of a PowerPoint presentation that has been given by AiG about the dispute, with a lot of emphasis on Carl Wieland's statements about and impressions of Ken Ham. The presentation seems to have the underlying assumption that Wieland's impressions of Ham couldn't possibly be accurate. It also has a slide that indicates that AiG-US was focused on biblical doctrine while the Australian group was focused on science (p. 32, compare to p. 30). An email shows Wieland chiding Ham for endorsing a book that makes arguments that was on their list of arguments that the groups recommended not be used (p. 36). This confirms my original impression of the schism that it partly involved this issue.