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Related: Editorials & Other Articles, Issue Forums, Alliance Forums, Region ForumsDoes Stormy have a good case?
Does it matter that Trump's John Hancock isn't there even though his attorney's is?
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Angry Dragon
(36,693 posts)
unblock
(52,116 posts)Contracts can exist without formal signatures and even without anything in writing. If she accepted and kept the money it’s hard to say the other party shouldn’t have any right to enforce their something in exchange.
She has a better argument saying Donnie and his lawyer voluntarily disclosed the confidential information and therefore she’s now free to talk about it.
EffieBlack
(14,249 posts)However, I'm not familiar with California contract law. It's possible it allows contracts to be voidable if certain legal requirements (such as proper signatures) aren't met, even if consideration has been paid and accepted. In such an instance, she would just have to give the money back and it would be as if the contract never existed, since it never really did.
All depends on the prevailing law. But I agree with you that her better argument is that he already breached the contract, therefore she's no longer bound to it.
I also wonder why people who have signed confidentiality agreements with Trump don't just find some deep pocket good samaritans to offset any penalty they would have to pay for breaking the agreement.
unblock
(52,116 posts)then again, donnie could theoretically claim "billions" in damages.
i'm also don't know the specifics of california contract law, but generally it's only real estate contracts that are "required" to be in writing.
i agree we're all speculating, but i would think it would be hard for a judge to conclude that no contract existed if stormy kept a sum as large as $130,000 for any great length of time. if she returned it within a week or two, that's one thing. but if she kept if for months or around a year, then surely it had to be in exchange for something.
But his failure to sign it could have another consequence. The fact that Trump never signed the contract could be used to prove that he was never party to the contract, since Cohen paid the money himself and insists that it was his money and he did it on his own volition. If Trump isn't a party to the contract, everything hinges on Cohen's behavior and his talking about the contract clearly breached the agreement and, therefore, releases Daniels from her obligations thereunder.
Isn't it fun to speculate about things we have absolutely no information about? 
unblock
(52,116 posts)i'd love to see stormy released from any constraints to tell/show her story, but all the similar agreements i've seen (non-disclosure agreements, not hush money agreements) don't fall apart just because of one slip-up.
each bit of confidential information stands on its own. if cohen blabbed about the existence of the agreement, then the existence of the agreement is no longer confidential information, but the rest of it still is and the contract still holds for the rest of it.
she still can't show any donnie dick pics she may have. all in all, that's probably a good thing....
PCIntern
(25,479 posts)To photograph it.
lunatica
(53,410 posts)
Or a magnifying glass and tweezers.
bluestarone
(16,859 posts)She received no money from tRUMP then could this make contract void?
jberryhill
(62,444 posts)Basically, the contracted party is identified in the alternative as Cohen's LLC "and/or" Trump's alias.
It is signed by an agent for the LLC, who is also its principal.
So, Trump signing or not is irrelevant.
Additionally, a signature is only required (in certain instances) by the party against whom enforcement of the contract is sought. She's not seeking to enforce the contract, so the absence of Trump's signature is neither here nor there, and does not render the contract as to Essential Consultants LLC to be void.
bluestarone
(16,859 posts)tRUMP HIMSELF should have paid the money? If he DID NOT actually pay the 130 or so thousand, then could THAT void the contract? Maybe i'm totally wrong here? TY for your reply!!
jberryhill
(62,444 posts)The contract provides that Cohen's LLC will tender the payment.
It's entirely ordinary for persons A and B to enter into a contract for the benefit of Person C. Person C need not be a party to a contract in which they are what is called an "intended beneficiary".
For example, if you have a debt with someone, I can certainly contract with that person to pay your debt on your behalf.
bluestarone
(16,859 posts)bettyellen
(47,209 posts)And that might be another way around?
louis-t
(23,267 posts)and never got any action, and won't be paid back by Don the
Con.
Fred Sanders
(23,946 posts)By the way I also did not have sex with Storms, but where is my 130G.
TomCADem
(17,382 posts)If Trump's lawyer is now saying that he fronted his own money as a gift to Trump, thus violating campaign finance laws, how does he enforce the agreement without being disbarred?
He pretty much has to own up to the fact that the contract was designed to evade campaign finance laws.
dchill
(38,441 posts)Laura PourMeADrink
(42,770 posts)it was fully executed (if, like you saw, ever was)
If it was never fully executed - why put a line for DD to sign?
Make her think that he eventually would?
unblock
(52,116 posts)easy for me to submit one of them to the court even if the document was in fact fully executed.
arguably, this is all just a trap to coax donnie into producing his signature.
Laura PourMeADrink
(42,770 posts)it..but didn't see it. Was it ever published?
I'd like to know what the consequences are for her if she ignores it and talks. Sure, return the $130k - but what else. It's not like she'd get hauled off the jail. It doesn't sound like she's wealthy (or why take $130k)
my point. If we knew what she would lose - surely a gofundme might cover it? Hell, I'd chip in 
EffieBlack
(14,249 posts)It's attached as an exhibit to the complaint.
https://www.dropbox.com/s/ocvnkwprbs7enje/Filed%20Complaint.pdf?dl=0
Laura PourMeADrink
(42,770 posts)1. Yowzer, obviously they've had experience writing these kind of non-disclosures !
2. the four people she told about Trump....obviously he can't control what they say - have they spoken?
3. the agreement calls for JAMs confidential arbitration - did she break agreement by filing suit in court?
4. thought I heard that she said she has proof - which sounds like she didn't comply and turn every stick of it over.
5. say she spills her guts - how would trump enforce and get the money? Say she had millions - If Cohen got it would we know when gave it to Trump? She probably doesn't have any. Why not set up a "legal defense" fund LLC. then she can go personally bankrupt spill the beans and move on.
EffieBlack
(14,249 posts)Regarding the four people - I wouldn't be surprised if Cohen and Trump paid them off, too.
Regarding arbitration - In my view, this suit doesn't breach the agreement since she's seeking declaratory relief, i.e., a ruling by the court that, as a matter of law, the contract never existed. This is a legal issues that can't be resolved in arbitration; only a court can rule on the legality of the contract.
Even if she turned everything over, she could still have retained electronic copies - the contract said she was to turn over all tangible copies and intellectual property rights therein. I haven't read the contract too closely, but I don't see any language prohibiting her from keeping electronic copies of anything - I may have missed it, though.
I have no idea what the answer would be to your last question.
jberryhill
(62,444 posts)Regardless of where they reside, they reside on a tangible medium.
On question 2, the obvious followup would have been to track down those four people and bind them to similar agreements.
Oh, and, in support of the "public policy" objection, then to the extent that this is a "John Edwards" campaign contribution, the contract is voidable as illegal.
EffieBlack
(14,249 posts)The issue isn’t whether she turned them over - I don’t think anyone has alleged that she didn't - but whether the contract required her to delete them once she passed them on to him.
Unlike in the old days, when people could turn over all prints, negatives, tapes, documents they had in their possession, she can turn over electronic copies but still retain them on her devices. I may have missed something, since I haven't fine-tooth combed the contract, but I don’t see anything that requires her to delete or purge everything from her devices.
Do you see anything to that effect?
jberryhill
(62,444 posts)I accidentally replied in the wrong spot.
" (and permanently delete any electronic copies that can not be transferred)"
EffieBlack
(14,249 posts)Laura PourMeADrink
(42,770 posts)In my mind....I have a picture of trump, say, and I did transfer that... literally put it on a thumb drive and delivered it to attorney. I "transferred" the pic so e-copy's mine.
Guess it must mean something else? Say a photo on your computer that for some reason you can't send in an email or print? Can not transfer...then you must delete the file ?
Hope you guys saw PP's attorney tonight. Cool, calm, collected. They have got Trump by the balls. If he signed agreement he admits to a bold face lie...if he doesn't...here comes the Stormy storm
EffieBlack
(14,249 posts)Much of it sounds like boilerplate language used when hard copies, negatives, films, tapes, etc. we’re the norm, with a few tweaks to try to update it to address electronic versions, but didn’t do it well. I suspect that Trump and his lawyers have been doing these NDAs for decades and never bothered to fully revise their documents to fit the digital age. Until he became president, it probably didn’t matter since there probably wasn’t a very lucrative market for dirt on a reality show pretend billionaire, so there wasn’t much risk that people would release any confidential information after he paid them a few bucks not to.
But time has changed and it doesn’t look like the Donald and his boys kept up.
Laura PourMeADrink
(42,770 posts)remedy when there is such a vast disparity between the "reward/payoff" amount and the penalty for violating the contract? If not, could this issue be brought to arbitration?
Obviously, $130k meant a lot to her at the time. But against $1 mm plus for every violation seems outlandish. Risk completely outweighs reward. If I had a jar of cookies and made you sign something that said you would pay me $1mm if you took one and you did, could you really be forced to pay me that much?
Another question, after seeing her attorney last night. The document clearly says "and/or" (DD or EC). So, since she signed the document that way, isn't that admitting it's "OK" from her side that either sign?
EffieBlack
(14,249 posts)But, unless she can prove duress, coercion, or some other undue pressure, she doesn’t have much of an argument on this since she didn’t have to sign the contract.
jberryhill
(62,444 posts)And I'm starting to think that the first draft was provided by her lawyer, not Cohen.
Take a look at this guy's website:
www.kmdlaw.com
"we thrive navigating through the difficult, the complex and the discrete affairs of our select clientelle"
He has a word choice error on "discreet" and a spelling error of clientele.
Be that as it may, this is what his practice is:
https://lawandcrime.com/high-profile/hulk-hogans-lawyers-are-pulling-some-pretty-sketchy-moves-in-the-gawker-case/
http://observer.com/2018/01/insane-backstory-behind-lawyer-who-shook-down-donald-trump-hulk-hogan-stormy-daniels-keith-davidson/
Davidson apparently specializes in monetizing sex tapes and infidelity claims.
But I'm curious as to why you believe they did not have "equal bargaining power". She could have just gone to the press with her story, and whatever evidence she had. She went cheap, IMHO, but she definitely had a lot of bargaining power, particularly if she had any evidence to back up the truth of the matter.
jberryhill
(62,444 posts)" (and permanently delete any electronic copies that can not be transferred)"
EffieBlack
(14,249 posts)So it was Daniels' copy.
It's possible that he signed it and never sent a signed copy. Or, as some of my clients have done, he didn't sign in because he had the copy that she signed and knew he could always sign it if that ever became an issue.
Cary
(11,746 posts)jberryhill
(62,444 posts)There are a couple of issues right out of the box, though.
First off, no, in general, your attorney does not sign a contract for you. Absent the full contract, which may specify otherwise, one question is what is Cohen’s signature doing on there in the first place. Cohen has claimed he did this on his own. So if it is really a contract between Cohen and Clifford, with Trump as an intended third party beneficiary, then his signature would be irrelevant.
Secondly, and again unless the contract may provide otherwise, the general principle in contract enforcement is that a signature is required of the party against whom enforcement is sought. For example, I say I will paint your house for ten dollars and produce a contract to that effect. You sign it, and I don’t. I then paint your house. When I ask you for the ten dollars, you say, “nope you didn’t sign the contract.” Well it does not matter if I signed it. You signed it and I painted your house. As applied here, she is not seeking to enforce the contract against him. She is seeking to invalidate the contract because Cohen initiated an arbitration seeking enforcement. Whether Trump signed it is not relevant if Trump has not violated it.
And there again we come to the point of Cohen having signed it, having said he did it on his own, and having initiated an arbitration (as he would do if he were a party to the contract, as opposed to, say, having signed it as a witness).
But I’d need a lot more facts to address your question in any serious way. This is all just off the cuff based on reports.
EffieBlack
(14,249 posts)He used a pseudonym - David Dennison. I'm not sure if he was named in the contract but there were signature lines for him, so I assume he was.
I'm trying to find a copy of the contract - I'll post it when I do.
EffieBlack
(14,249 posts)"David Dennison" is party to the contract and identified in the side agreement - his true name is blacked out on the document filed. But there can be little doubt that it is Donald Trump.
The complaint alleges that his failure to sign the agreement makes the agreement "null and void and of no consequence." Alternatively, it argues that, even if a contract existed, it was breached by Cohen when he commented on it.
Reading the complain turns my stomach - this man is actually president of the United States.
jberryhill
(62,444 posts)"David Dennison" is party to the contract.
No, the party contracting with Daniels is "Essential Consultants LLC and/or David Dennison". While Dennison is Trump's alias, the contract by its own terms states that EC is to do the payment, and is a party to the contract. The "and/or" is an odd way of identifying a collective party to a contract, but there is no doubt that EC's principal and agent signed it, and that the contracted party is stated in the alternative.
EffieBlack
(14,249 posts)If you read the entire contract, not just the first paragraph, you will see that "David Dennison" or "DD" is not only referenced throughout the agreement, the contract specifically refers to him as "enter{ing} into this agreement" and contains numerous, detailed actions that he agrees to do and not do under the agreement.
The fact that "DD" is a party to the agreement is not even debatable.
jberryhill
(62,444 posts)There are two parties to the contract:
1. Daniels
2. EC LLC "and/or" David Dennison
That is TWO contracted parties. That is not THREE contracted parties. Like a computer program initialization of variables, the first thing a contract does is to define "who are the parties". Individual persons might have various jobs to do in performance of the contract, but there is NO allegation in this contract that "DD" did not perform all obligations under the contract anyway. So that's something of a "so what?" Given that EC and David Dennison are defined as a joint party, this is like saying that both you and your spouse need to both sign every check drawn on your joint bank account. No, you don't.
While the "and/or" wording is interesting, the literal interpretation of "and/or" is that either one of them suffices for the other. It is quite common in contracts to have a "party" identified in the preamble as an assortment of various individuals and entities, which are treated as a single party for the purpose of the contract.
As to any independent obligations of DD set forth in the contract - they have been performed. DD has not, according to the complaint itself, initiated or taken any action under the contract. In the recitals, EC is required to make the payment. The absence of Trump's signature is irrelevant to the fact that she was paid in accordance with the contract, and likewise irrelevant to the claim that Cohen - a signatory for EC LLC - is claimed to have initiated an arbitration. Even if we quibble over what "and/or" may have meant there, it is very clear that one signatory party has initiated an arbitration against the other signatory party.
And it is on that point where the Complaint - and again, I'm just looking at this thing as I would any other civil complaint - resorts to silly and fluffy phrasing specifically:
At 21 -
"The agreement also required the signature of parties to the agreement, including that of Mr. Trump"
The agreement states no such requirement. Moreover, it says it can be signed in duplicate originals. Whether she has a signed copy of it or not is not even relevant to whether he signed it, and filed it away, even if he did not deliver a signed copy.
"Moreover, as is customary, and widely understood at all times that unless all of the parties signed the documents as required, the Hush Agreement, together with all of its terms and conditions, was null and void."
Notice the broken grammar there. I'm familiar with how sentences get broken that way. That's usually an indication that it was re-worked a few times, and when one does that to "fix a phrase", one runs the risk of breaking the syntax. The word "that" should have come out when it was edited.
In a contract complaint, when you have a contract with an integration clause (a clause to the effect that this document is the full agreement and understanding), you don't go off citing an unidentified "custom" or something that is "widely understood" to handwave at a conclusory statement that the whole contract is null and void.
What is "customary" and "widely understood" as a principle of Contracts 101 is that a signed writing is only required on the part of the party against whom enforcement of the contract is sought. Again, this is not an action seeking to enforce the contract as to DD. This is an action trying to get out from under an arbitration proceeding brought by EC LLC, which most certainly did sign it.
At 22 -
The allegation that Trump didn't sign it is made on "information and belief", which is a hedge against him actually having signed it. Again, while whether he signed it or not is irrelevant to the legal claim posed in the complaint, they actually don't know whether or not he signed it. Hence, the "information and belief" hedge.
Again, the contract allows counterpart signed originals. Whether the copy attached to this complaint has DD's signature, is not probative of whether some other counterpart was or was not signed.
EffieBlack
(14,249 posts)But as an attorney with more than 30 years experience negotiating contracts, I know what I'm talking about.
Of course, you are free to interpret it otherwise however, you choose.
jberryhill
(62,444 posts)I only have 20. But at the end of the day, if you would like to cite to a relevant section of the Restatement or some case law to the effect that whether a missing signature of a performing party on a particular copy a joint agreement contemplating counterpart originals renders the contract null and void, be my guest. Otherwise, we can just swap resumés.
PJMcK
(21,995 posts)Your explanations and insights in this thread were excellent and very informative, as always with your post.
Thanks for clarifying the complex legal issues.
EffieBlack
(14,249 posts)there's no need for me to support such an argument with the Restatement or anything else.
You stated that "Dennison" was not a party to the contract. I believe that the contract explicitly makes clear that he is. You obviously feel otherwise. So be it.
jberryhill
(62,444 posts)Dennison is a named constituent of a joint party, against whom enforcement is not sought.
The claim that Dennison didn't sign is obviously hedged, since Section 8.9 does not require signature on all copies, nor does it require delivery of signed copies. Leaving out delivery is a bad habit I see a lot, and I will usually require "execution and delivery no later than" a particular date.
But there's all kinds of goofy in this thing. Take having the side letter deemed "attorney's eyes only", and signed by the parties - does that strike you as oddly as it strikes me?
EffieBlack
(14,249 posts)Or, as you so perfectly put it - "there's all kinds of goofy in this thing."
I don't think the lack of signature necessarily affects anything if there's other evidence of an agreement, which there seems to be here. But, as I said in another post, that actually puts Trump in a difficult position. Usually the lack of signature is used by the person who didn't sign it to prove they're not bound in order to get out of it. I've never seen anyone argue that the lack of signature by the OTHER party invalidates a contract.
If she claims he didn't sign the contract so it's not binding, what is HIS response? Does he claim that he IS a party to the contract? And if he does, how does he then claim that he never had a sexual relationship with her? Or does he claim he didn't have nuthin to do with nuthin and, thus, agree with her that the contract isn't binding on him?
It would be difficult for him to try to split it down the middle, claiming that he didn't sign the contract, but, he's still a party to it and oh by the way, he's going to enforce the contract against her to keep her from breaching the promises she made in a contract he wasn't party to?
Aside from that just sounding stupid, I suspect the court might find that he can't have it both ways - that it's very possible he didn't sign the contract in order to leave himself an out to later claim that he wasn't a party to it if it got out. If he could have claimed that the contract wasn't binding on him because he didn't sign it, it would be difficult for him to argue that it's binding on her, even though he didn't sign it. One way to gauge that would be for the court to review other similar agreements to see if he signed those.
jberryhill
(62,444 posts)I gather from the recent news flash on my phone that Cohen had indeed obtained an adverse arbitration decision against her.
The best practical approach, IMHO, would be for "friends of Stormy Daniels" to establish a trust for her to live on as a first step.
I also believe that if the idea is to shoot for the moon to have the contract voided, then they should have at least thrown in a "contrary to public policy" count. As a general proposition, one could argue that this sort of thing renders the president subject to compromise of some kind. On the other hand, as an individual the president surely can be subject to all sorts of ordinary commercial agreements which are confidential.
EffieBlack
(14,249 posts)The fact that the contract was signed so close to the election with the clear purpose of keeping information from the American voters AND the blackmail potential of keeping such info secret give your public polcy argument some weight.
jberryhill
(62,444 posts)So, the void as against public policy is bolstered by the fact that EC's payment constitutes an unlawful campaign contribution.
TomCADem
(17,382 posts)...how is he going to enforce it?
Trump: I never authorized that contract. I had no knowledge of it. My attorney used his own money. But, I am suing her for millions of dollars for breaching a contract with me that I never agreed to.
EffieBlack
(14,249 posts)Also, I never had an affair with her, but I want to sue her for breaching a contract that I wasn't party to that required her to turn over photos and other documentary evidence of a relationship I didn't have with her.
Methinks Stormy and her lawyer have him boxed into a Catch-22.
Laura PourMeADrink
(42,770 posts)would Trump get money ? I could see her paying Cohen's LLC - but would we ever even be able to see the money go up to Trump?
unblock
(52,116 posts)stormy didn't really need anything from donnie other than the cash, which could come from anyone as far as she cares.
and donnie doesn't need anything from the contract other than a way to keep stormy's mouth shut, and his lawyer could do that just as well if the lawyer's was the signatory rather than donnie. i think the only problem is that any damage involved in stormy releasing confidential information would be damage to donnie rather than to his lawyer, but that could be solved with one of those clauses that stipulates up front that the unauthorized release of classified information would cause great damage to, in this case donnie's lawyer.
given that donnie and stormy were referred to by cryptic initials in the agreement, i suspect that donnie, at least, was never meant to be a signatory. could he even legally sign under an alias?
on edit, i see from the complaint/contract that stormy did sign, using her real signature (stephanie clifford) rather than the alias used throughout the document.
there is a signature line for "dd", meant to be for donnie, unsigned.
but it's a silly argument to care that donnie didn't sign it. he could sign his copy tomorrow and solve that technicality even if it was an issue.
jberryhill
(62,444 posts)A signature is any mark you intend as one.
If Trump is an intended third party beneficiary, and with, say, liquidated damages, then harm to anyone, or of what kind, doesn’t matter.
It would make sense to have a huge liquidated damages provision, since if the only issue on the table is the $130,000 then someone could easily simply indemnify her. However, even if you set it at several million dollars, for example, as Nixon said, “I know where you can get that kind of money.”
pnwmom
(108,955 posts)and seems to imply she won't be held responsible if they themselves release it -- unless she induces or inspires them to do it. Or at least I think that's what it says.
So can they just release it now -- all on their own -- and be done with it?
It's in the second document, page 5.
https://www.dropbox.com/s/ocvnkwprbs7enje/Filed%20Complaint.pdf?dl=0
jberryhill
(62,444 posts)Depends on what you mean by "the information". Those may be people who were identified as having knowledge of the affair generally, and she is not responsible for them telling anyone on their own. It could also be that they were also tracked down and paid to be quiet in separate agreements.
There are a number of problems with the civil complaint, but I do have quite a bit on my plate today.
kcr
(15,314 posts)That's what I thought her issue was. Cohen blabs that he basically did this all by himself, showing he was self-dealing. Normally Trump not signing it wouldn't matter, but this is different.
jberryhill
(62,444 posts)...and there is apparently no obligation of delivery of a signed counterpart.
So whether he signed it is an open question.
MattP
(3,304 posts)Might be worth it
EffieBlack
(14,249 posts)Ea h time she talked, each interview, each photo shared, etc. would likely count as a separate breach.
As they say, a million here, a million there and pretty soon you're talking about some real money ...
Response to Beakybird (Original post)
Post removed
TheBlackAdder
(28,167 posts)Perhaps this is not only a way to negate the agreement, but prove that Trump was in on it.
duforsure
(11,884 posts)She took the money without HIS name on it, wouldn't that disregard trump's case, unless he admits it, but his name was not on the agreement, so just claiming he was involved doesn't make the agreement binding to him. I don't think. Claims without proof don't go far , or anyone could use that excuse. It could also put them, trump and cohen in more legal jepardy, depositions and such if they start legal actions too. They'll pay her off again to shut up.
NCTraveler
(30,481 posts)Would be to argue Cohen/Trump broke the contract.
Funtatlaguy
(10,862 posts)is what caused this situation.
Lee-Lee
(6,324 posts)Did she sign multiple copies and another was taken back to him and beatrs his signature?
If so then there would be a signed copy, just not one she has.
But releasing that would release a copy with Trumps signature and therefore validate this entire story as legit even more where he couldn’t deny he knew about the document....
jberryhill
(62,444 posts)I don't know about anyone else, but in a counterpart execution clause I will typically include some language around execution *and delivery by a date certain* of signed counterparts, to avoid the sort of problem that can come up when one party executes and delivers, and then the other party wanders off, we don't get a signed copy, and the other side decides that they can hold onto the agreement executed by one side, to sign whenever they feel like it.
Still, the leap of "he didn't sign it so it is void" is an odd allegation, IMHO. Not only is it conclusory, but it's not as if she's seeking enforcement of the agreement against him.
Lee-Lee
(6,324 posts)She’s been doing a tour of strip clubs and making good money off the publicity in other ways.
I’m leaning toward this being filed knowing it won’t go anywhere just to keep her name in the media.
And if she can make some money and make him squirm and damage him it’s a win for her and the nation, so best of luck to her!
jberryhill
(62,444 posts)Just looking at this absent the "real reason" for it which, yes, is publicity. She's looking for a DJ without any real case or controversy other than the allegation that Cohen initiated an arbitration. But if Cohen is not a proper party to the arbitration, then that's fodder for the arbitration itself. If the arbitration hasn't run its course, then I don't see where the beef is. Even if nobody showed up to defend this complaint, I don't see a reason for the court to exercise its discretionary equitable jurisdiction to grant a DJ.
Instead of unconscionability, IMHO a better argument to be had is void as - everyone's favorite disfavored grounds - contrary to public policy. Not in the formation, but in continued performance.
I'm not a fan of civil complaints that include a lot of adjectives and adverbs in general. There's a lot of characterization of facts, and conclusory allegations, as opposed to facts, and this one is typical of "civil complaint as performance art."
Sanity Claws
(21,840 posts)If so, I don't think so. She accepted the consideration, the money.
A few weeks ago, she raised the issue that he and his attorney spoke about the contract, thus breaching the nondisclosure agreement. His prior breach of what seems like a material provision would excuse her performance under the contract. At least that is what I thought when I first heard this a couple of weeks ago.
spanone
(135,791 posts)Bad Thoughts
(2,514 posts)If Trump did not sign, he would not have been party to the agreement, and she is free to tell her story as long as she can prove that Cohen was the person who violated the contract.
jberryhill
(62,444 posts)This complaint does not allege breach by the other party.
Cartoonist
(7,309 posts)With a twist. Isn't Donnie blackmailing himself by paying someone to keep silent?
Cartoonist
(7,309 posts)If Stormy had asked for money to keep quiet, that's blackmail. Trump just headed her off by paying her off. I can see that it's not legally called blackmail, but the persons and money involved are exactly the same.
I would call the contract blackmail, but I'm obviously word ignorant.
jberryhill
(62,444 posts)If you are talking about US federal law, instead of any of various colloquial usages of the term, then the offense of blackmail is:
18 U.S. Code § 873 - Blackmail
https://www.law.cornell.edu/uscode/text/18/873
Whoever, under a threat of informing, or as a consideration for not informing, against any violation of any law of the United States, demands or receives any money or other valuable thing, shall be fined under this title or imprisoned not more than one year, or both.
(June 25, 1948, ch. 645, 62 Stat. 740; Pub. L. 103–322, title XXXIII, § 330016(1)(I), Sept. 13, 1994, 108 Stat. 2147.)
So, again, if you are talking about a US criminal law going under the name "Blackmail", the offense is trying to get something of value from someone under threat of exposing a violation of US law.
Cartoonist
(7,309 posts)I'm wondering, everything fits the description except for the threat of informing. Could Donald claim he was threatened?
jberryhill
(62,444 posts)What violation of federal law by Donald Trump was she threatening to inform authorities about?
titaniumsalute
(4,742 posts)Obviously this is super high profile and one thing attorneys have are egos. This attorney isn't going to want to be national and international news and simply lose.
Hamlette
(15,408 posts)I don't think she wins based on what's in the complaint.
Spider Jerusalem
(21,786 posts)Which means she was bound by a contractual obligation.
Iggo
(47,534 posts)Or is the lawyer just like a place-holder until the client can sign?
(I know squat about the law other than saying "No contest, Your Honor", so please be gentle about my misunderstandings of the law...lol.)
jberryhill
(62,444 posts)This contract is between Daniels and "Essential Consultants LLC and/or David Dennison".
While it is executed "as to form" by Cohen as attorney of Essential Consultants LLC, it is my understanding that he was also principal of that LLC.
So it was signed by the principal of the contracted party.
Blue_true
(31,261 posts)Evangelicals support an immoral man, the more they have to face that, the better.
Jersey Devil
(9,874 posts)True, a contract must be signed for it to be enforceable under what they call the Statute of Frauds, but there are many exceptions to the Statute of Frauds that would make such a contract legal and enforceable. Among those exceptions are payment of consideration (the $130k) and partial performance of the contract. I think her lawsuit will be tossed.
jberryhill
(62,444 posts)The party which contracted with Daniels is stated as "Essential Consultants LLC and/or David Dennison", and it is signed by the principal of Essential Consultants LLC.
While it specifies "as to form", since Cohen was principal, I don't think there is any distinction to be made there.
EffieBlack
(14,249 posts)Usually the doctrine of Statute of Frauds applies when one party is trying to get out of an agreement by alleging an absence or writing, but in most instances, the other party is trying to enforce it.
In this case, Donald Trump has not yet tried to enforce it. In order to invoke the doctrine, HE would have to argue that the contract is enforceable as to him (it could still be enforceable as to Cohen). He hasn't done that and it would be interesting to see how he would manage to argue that he had no contract with her while, at the same time, claiming that he never had a relationship with her and he didn't pay her or know about any payment to her. If he didn't have any relationship, there was nothing for her to hush up about and certainly would be no photographs, tapes or other documentary evidence of him, so what would there be for her to turn over? And if she had nothing to turn over and nothing to talk about, she offered no consideration for the contract, possibly making it non-enforceable, since mutual consideration is an essential element of a contract.
I don't know the answers to all of this, but this would certainly make some interesting law school exam questions!
pnwmom
(108,955 posts)pnwmom
(108,955 posts)besides it not having been signed?
workinclasszero
(28,270 posts)
Gothmog
(144,919 posts)jberryhill
(62,444 posts)...if you are party to litigation undertaken for some purpose other than as a publicity vehicle, the appearance of your attorney on television to talk about your case does not equate to being a "good attorney".
Gothmog
(144,919 posts)I watch the interview and this attorney knows what he is doing
underthematrix
(5,811 posts)wanna see the texts and images Twitler sent to her.
Laura PourMeADrink
(42,770 posts)think Putin's got film of dolt45 in the suite Obama stayed in in moscow.
whoa.....if tape leaked - poor MSM - they'd have to show that on pay-per-view
I always think ..if we want to nail trump we need to get Putin mad at him ! Yes, WE need to collude with Russia to get rid of OUR prez
underthematrix
(5,811 posts)Hamlette
(15,408 posts)I'd send a few bucks to know what's up.
EffieBlack
(14,249 posts)Each photo, each interview, etc. would count as a separate breach.
marlakay
(11,425 posts)Why would she sign something like that, surely before election someone would have given her as much or more without all that.
EffieBlack
(14,249 posts)This info wouldn’t have had much market value if it just involved a reality show star-turned failed presidential candidate.
jberryhill
(62,444 posts)The buyout is the liquidated damages provision of $1M for each individual instance of breach.
tinrobot
(10,885 posts)She wins no matter what.
If he stays silent and does nothing, she gets to sell her story for millions.
If he contests in court, then he admits he was party to the agreement and that the payments were about him. That could be seen as a violation of campaign laws.
There's also the remote chance that he pays her an even greater amount for more silence, which just shows how easily he can be blackmailed.
misanthrope
(7,408 posts)It shows what a fool he is.
EffieBlack
(14,249 posts)It will be difficult for him to both try to enforce the contract AND claim that: 1) he had nothing to do with it; and 2) he didn't have an affair with her.
And it would be interesting to see if he signed other NDAs. If he didn't, it could be inferred that he didn't sign them on purpose so that he could later distance himself from them if the need arose.
She's got him in a box.
GusBob
(7,286 posts)And penalties. If she violates the restraint order, what are the penalties? Jail?
Good lord I can see the campaign signs now
FREE STORMY!!!
EffieBlack
(14,249 posts)But I think she's on solid footing bringing this claim in a court, not in arbitration. An arbitrator has very wide leeway to interpret and enforce the terms of the contract, but they cannot rule on whether a contract itself is legal or not, since that's a question of law that only a court can determine.
The contract recognizes that - it says that arbitration is required "to the greatest extent permitted by law." The law does not permit an arbitrator to rule on the legality of a contract, so Stormy is fully within her rights to take that particular issue to a court of law.
kairos12
(12,842 posts)lapfog_1
(29,191 posts)The issue could go her way.
But the completion of the act of the contract (transfer of $130K) should constitute offer and acceptance, even without a signature of one of the parties.
I hope her lawyers are really good and find a way to wiggle out.
Either way, Trump is in trouble. If he didn't re-reimburse Cohn then this is a campaign contribution unreported and way over the limit.
EffieBlack
(14,249 posts)First, she got the contract out to the public by filing a lawsuit in state court.
And her complaint puts him in a Catch-22. If he claims that he's not party to the contract because he never signed it (or for any other reason), he can't enforce the NDA against her and she's free to speak about it. If he does try to enforce it against her, he's admitting that he had sex with her and that he took pains to shut her up about it right before the campaign.
Either way, he's not in a good position.
Motownman78
(491 posts)Turn over any and all information to the public. I wouldn't give a damn about some silly lawsuit if it meant saving America from the dumpster fire. Of course, I don't have a pot to piss in, so threats of a lawsuit would mean nothing to me.