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Related: Editorials & Other Articles, Issue Forums, Alliance Forums, Region ForumsDoes anyone know anything about California's interpretation of "and/or?"
On Smerconish last Saturday, he was interviewing Daniels' lawyer. Daniels claims that the agreement with Trump is not valid because Trump didn't sign it. Smerconish pointed to a place in the document which seemed to say it needed to be signed by Dennison (Trump) OR some other guy... attorney, probably. Daniels' lawyer said that in California "and/or" was to be interpreted.... <in the plural??> I'm sorry that I forget his exact terminology. Does "and/or" have different meanings in different states?
I really do hate legalistic nit-picking. Just a way for lawyers to rack up thousands and thousands of dollars.
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(52,227 posts)it usually indicates lazy and/or ( 
) sloppy drafting on the part of lawyers because it's unnecessary at best and ambiguous at worst.
if you mean both x and y, just use "and" or "both x and y".
if you mean either x or y, just use "or" or "either x or y".
if you mean either x or y or both, just use "either x or y or both".
often "and/or" means that the parties actually never really contemplated either the "and" alternative or the "or" alternative, leaving the actual intent of the parties up to the courts.
gratuitous
(82,849 posts)It's meant to be a high-sounding legal term, but it almost always means the lawyer was too goddam lazy to pick a conjunction. I have dedicated my legal secretarying career to stamping it out wherever possible, but it's a virulent infection. For example: "Produce all records of phone calls defendant made between March 10 and March 12, 2018. This includes, but is not limited to, cell phones, landlines, Skype, and/or Facetime sessions." OR, you fathead! You mean OR!
However, by using "and/or," whoever wrote the settlement agreement has invited the other party to interpret that as he or she sees fit. If Trump's attorney drafted the agreement, Daniels' attorney gets to interpret it as expansively or as exclusively as he wants. And vice versa. However, looking at the original agreement, section 8.5 on page 13 agrees that neither party is the author of the agreement, but that it was jointly drafted by the parties.
Looking at the agreement, Section 1 identifies the parties to it as "EC, LLC and/or David Dennison" on the one side, and Peggy Peterson on the other. If EC, LLC wants to argue now that the identification of the parties is to be read as alternative and not inclusive (that is, the first party is EC, LLC or David Dennison), then Donald Trump isn't and never was a party to the agreement at all, he never signed it, and he's not entitled to any of its protections, benefits, or obligations.
Original lawsuit with attached exhibits can be seen here:
https://www.usatoday.com/story/news/politics/2018/03/06/read-stormy-daniels-lawsuit-against-donald-trump/401930002/
jberryhill
(62,444 posts)But to assume that Trump didn’t sign the agreement is an error.
The contract states it can be signed in counterpart copies. Simply because trump didn’t sign the one which Daniels attaches as an exhibit does not mean that Trump did not sign some other copy.
gratuitous
(82,849 posts)When our office does the "counterpart original" thing, we have all the signature pages, and a record that we supplied our pages to all the other parties. All Team Trump has to do is produce its signed original with "DD"'s signature (though why the rep for EC, LLC signed the same agreement that PP signed, but not DD's copy is a curious question), as well as the proof that they supplied a copy of that original to the other side. It hasn't been very long, I'll grant you, but each day that passes makes it more and more suspicious.
Also mitigating against the existence of an agreement with Trump's signature is that the settlement payment is usually conditioned on all parties having a fully executed agreement. If Trump didn't sign, then payment wouldn't have been proffered or accepted. The time gap between when the parties reached their agreement and reduced it to writing and the payment to Stormy Daniels also tends to show that Trump didn't sign the agreement at the time.
jberryhill
(62,444 posts)Also when your office does counterpart originals, I would guess that you do what most other folks do which is to specify "execution and delivery" of them.
Team Trump doesn't have to produce anything. Quite obviously, the arbitrator didn't have a problem with whatever was supplied to the arbitrator, which I would guess either a signed copy or a more generally assignment of claims from DD to EC.
"The time gap between when the parties reached their agreement and reduced it to writing and the payment to Stormy Daniels also tends to show that Trump didn't sign the agreement at the time."
I don't see an issue there at all. First off, there is no outside time limit on when Trump can sign. He can sign it next week if he wants to, but there is no reason for him to sign.
A contract is not "invalid" if the other side has performed and hasn't signed. You only need a signed copy from the other side when you are seeking to enforce the contract against that side. Daniels is not seeking to enforce the contract, so the absence of a signature - on her copy or any other copy - doesn't render the contract "void".
"It hasn't been very long, I'll grant you, but each day that passes makes it more and more suspicious."
Ummmm... the time for Trump to produce anything isn't anytime soon. A civil complaint was filed. I would expect that, once service is taken care of (and service can take some time), that the first thing we'd see is a motion to dismiss (on a couple of grounds that are pretty obvious). Even if the MTD is denied, then all you would see is an Answer to the Complaint (which doesn't require anyone to produce a signed copy of anything), followed by a motion to proceed under seal. Because the subject matter of the suit relates to a contract which, by its own terms, is confidential. I would expect the motion to seal to be granted. After that, we don't see jack.
gratuitous
(82,849 posts)Then they should produce a copy of the agreement with his signature on it, as well as some kind of proof that they supplied that to PP's attorneys. It's fine to conjecture that there is an agreement somewhere with Trump's signature on it, but nobody's seen that, and his attorneys haven't brought one forward. If Trump isn't a party to the agreement, he can't enforce it.
As for the arbitration matter with ADR, there is no indication in the ADR documents that Team Trump's petition was served on the other side or that they were afforded an opportunity to respond to the petition. It's also unclear whether the attorney who signed the arbitration petition on behalf of Trump is licensed to practice in California. I've worked with ADR in Oregon and Washington, and they're usually pretty meticulous about following their procedures; I don't know how ADR in California conducts its business, but the meager documentation that is in the public sphere from ADR California raises more questions that it answers.
jberryhill
(62,444 posts)Court proceedings don't work like they do on television shows. Saying that they "should produce a copy" of whatever, when they haven't even been served yet, let alone filed a motion to dismiss, is just absurd. Nobody needs to produce jack squat yet.
"there is no indication in the ADR documents that Team Trump's petition was served on the other side or that they were afforded an opportunity to respond to the petition"
Did you read the ADR provisions of the contract, yes or no?
The ADR provisions of the contract expressly provide for ex parte applications for a TRO.
Read the terms of the contract, re-visit your quote above, and let me know what you think.
gratuitous
(82,849 posts)Stormy Daniels has alleged in her complaint that Trump didn't sign the agreement. If Trump produces his signed agreement and shows that he had supplied that to Daniels' attorney, he can certainly overcome that allegation whenever he responds to the complaint (and, considering Trump's usual handling of matters, it's a bit surprising he hasn't published a copy of agreement with his signature on it). To this point, Trump is proceeding as if the agreement is enforceable. Daniels' lawsuit alleges it isn't enforceable.
Daniels seeks a declaration of the California court that the agreement is null and void (Complaint, ¶¶ 22, 26, 28) on either of two bases: Trump's failure to sign the agreement; and Cohen's public statements in February 2018 disclosing some of the terms and obligations of the agreement. If the court agrees with her that the agreement isn't enforceable for either reason, then the ADR proceeding isn't binding on Daniels. The action now is before the Superior Court in Los Angeles County for a ruling on the validity of the settlement agreement.
jberryhill
(62,444 posts)Your point was that there was something odd that Trump hasn't produced a signed copy as of yet. Again, we are nowhere near any procedural circumstance where that would be a "thing".
All kinds of procedural paths can branch from where this case is right now. But this case is nowhere near any event which makes Trumps production of a signed agreement relevant to anything at this point.
What the plaintiff is attempting to do is to overturn an arbitration while not directly saying "I want to overturn the arbitration" because, as you probably know, "I want to overturn a binding arbitration" is a dog that does not hunt absent some really extreme conditions which are not alleged here. Indeed, the case doesn't challenge the arbitration decision at all.
Likewise, the claim that "Cohen breached, so I can too" is not a dog that hunts here. First off, you should note that the claim of "Cohen breached, so I can too" is one in which the validity of the contract is assumed. In other words, it is an alternative argument, and not a supplemental argument. It's a piss poor one too, since if she is essentially claiming that she has an affirmative defense to breach of the contract which she believes was binding on Cohen, then the court is not the proper venue for that determination. Claims and defenses of breach, and their consequences, are to be arbitrated under the contract, not litigated in court. To put it another way, if Cohen breached the contract, that is not a grounds for "invalidating" the contract.
What's kind of amusing is that Team Daniels only recently said they would refund the $130,000. If you believe you have received payment under a void contract, then you don't file a DJ action and then say "Oh, here's the money back." Quite obviously, Daniels' retention of the $130,000 thus far, and the belated realization that it was never even attempted to be tendered back, is a strong admission by conduct that the agreement was not void. If my client had received payment under a contract which my client believed to be void, then at LEAST I'd have that client put the $130,000 into escrow if the other side refused a tender of it. But I wouldn't have my client running around with $130k in their pocket saying the contract was void.
pnwmom
(108,978 posts)which is what he has been claiming?
And if his attorney signed it without telling him, how could Trump be bound by a claim he didn't even know about -- the promise to release her from all previous claims, which the document makes?
Trump can't have it both ways.
jberryhill
(62,444 posts)Outside of court, people can say whatever the heck they want.
There is the world that exists in a court proceeding, and then there is the wild and wooly outside world.
Aside from which, I don't think Trump himself has said much on the subject at all.
Once more, with feeling, Daniels is not seeking to enforce the contract against Trump. So a signed copy by Trump is not relevant to her action. She's trying to get out from under an arbitrator's decision to enforce the contract against her.
A signed copy of a contract is required (under certain circumstances) by the party against whom enforcement is sought.
pnwmom
(108,978 posts)into a contract with her, right?
And if he acknowledges he entered into the contract with her, then he could be in trouble with the FEC.
So it seems to me that they've carefully boxed him in.
ON UPDATE:
In the places where DD was supposed to initial the document, EC was initialed instead. That would seem to increase the possibility that DT never signed the document at all -- or else why didn't Cohen have him initial the pages, too?
https://www.vox.com/policy-and-politics/2018/3/13/17109656/stormy-daniels-donald-trump-lawsuit-affair-porn-adult-arbitration-michael-cohen-payoff
As something of a "why do we care" issue, I don't get the investment in whether Daniels has a solid case or not.
In October 2016, Daniels decided she'd rather have $130,000 than tell anyone about the fact that she had been having sex with Trump in 2005/6. More recently, Daniels decided that the assumption that Trump wouldn't win election was incorrect, and that she could make a lot more money by talking about it. Hence, she wants out of the contract. This does not make her any sort of political heroine or "cause" to rally around. We now know, with high certainty, that indeed she and Trump were having sex for a year back in 2005/6. We now know, with high certainty, that she was paid $130,000. What more 'we' get out of this thing, is totally unrelated to whether Daniels has a valid contract or a worthwhile court case.
But you are asking:
"But Trump can't enforce it against her unless he acknowledges that he entered into a contract with her, right?"
This is a civil action in which Daniels is seeking a declaratory judgment that the contract is void. This is not an action in which Trump is seeking to enforce the contract against her. The reason the case is positioned this way is that the court is not in a position to enforce the contract or not enforce the contract. The contract provides that the exclusive mechanism of enforcement is through private arbitration. Contracting parties are free to do that. In fact, it is a Constitutional right to do that.
Because the freedom to contract is a broad Constitutional right, people can agree to all kinds of insane crap in contracts. Additionally, in contracts where the parties have had their own legal advisors, and everyone acknowledges that, then the types of defenses that are being rattled off - e.g. unconscionability - have a very low likelihood of success. The types of contracts which are usually found "unconscionable" are where the parties had significant differences in bargaining power or sophistication. Those things tend to come up in crazy terms in "rent a center" type contracts where someone ends up paying thousands of dollars in penalties for a $500 couch because of opaque language written on the back of a form that someone signed to buy a couch at one of those sorts of places. Those types of decisions are generally not applied to matters where actual dollar figures are difficult to ascertain because they are reputational.
As I had mentioned, to you specifically even, on the subject of "who can enforce the contract" the contract ALSO provides that the rights in the contract can be assigned. I wrote up a mini course on the topic of "assignment and delegation" in contract law.
Down in one of the provisions under I believe it was Section 8 is a little ditty to the effect that the contract is binding on and inures to the benefit of the parties "assigns".
As to Trump, all of his obligations were performed. Also as to Trump there is no obligation to have delivered a signed agreement nor to have signed it at any particular time. That is why, when you sign a contract, you want it to specify execution AND delivery, if you think you might want to be enforcing it against the other side at some time in the future.
Initialing pages is helpful in circumstances where you think someone might attempt to do something dodgy in a multi-page contract - i.e. if someone says, "Hey, my copy of page two didn't say that!" Again, there's no such claim or issue in this dispute at present, so whether anyone did or did not initial the pages is neither here nor there in relation to any active claim in this dispute.
pnwmom
(108,978 posts)his promise to release her from all previous claims, which he couldn't have given if he wasn't even aware that Cohen signed the contract on his behalf.
And there is a legal debate I have seen argued (in various places) about whether the requirement for arbitration is itself is now void. I'm assuming you think it isn't.
jberryhill
(62,444 posts)How can you say he "hasn't performed" an obligation to release her from any prior claims, including potentially unknown claims, when he hasn't sought to sue her for any prior claims?
That's just a general release clause. Was he also required to "know" of any "unknown claims" even if he did sign it?
A release of claims is a release of claims. It's a promise not to sue you for any stuff I might be able to sue you for. Trump obviously hasn't sued her for anything. So I don't get the release part.
(And, if it is not clear, a contractual release of claims is not a release of claims relating to future breach of the contract, but that should be obvious).
Also, as I mentioned before, claims can be sold, given away, or otherwise assigned, just as rights under a contract can be. If they couldn't be assigned, vast sectors of the economy would cease to function.
So, let's say the following happens. Abel assigns to Charlie all rights in any claims he has against Bob. Bob then signs an agreement with Charlie, under which Charlie releases Bob from any claims Abel has against Bob. Bob and Charlie sign the release. Abel does not sign the release. There's nothing wrong with that.
You know what? A couple of years ago one of my kids was in a car accident. He was at fault, too. Ran a red light. The person he hit sued him and I was also a defendant under "negligent entrustment" (which is the normal way to get at the actual policy holder in car accidents). Like most cases of its kind, it was settled. I am certain that the settlement provided for a mutual release of claims, under which the plaintiff released me from any claims arising from the accident etc., and I released the plaintiff from any claims I might have (if, for example, it turned out they were lying about the damage to their car). Not only did I not sign the release, I've never actually seen it. I don't even know what the final dollar figure was. Nonetheless, I'm sure whatever provisions are in that settlement are binding against me. Why? Because I signed away all of my claims to the insurance company. All I ever got is a note to the effect that it was settled on my behalf.
So, gee, I'm pretty sure I released whoever it was from any claims I might have against them. In an agreement which I did not sign, never saw, and don't even know what was paid.
I'm sure it would come up if I went about finding out who it was (I've long forgotten), and figured out whether I might have some claim against them. But it's 100% irrelevant, because I'm not suing them for anything anyway.
jberryhill
(62,444 posts)I wrote this wrong the first time, and then had to go back and edit it.
On the off chance you read it before I fixed it:
So, let's say the following happens.
1. Abel assigns to Charlie all rights in any claims which Abel has against Bob.
2. Bob then signs an agreement with Charlie, under which Charlie releases Bob from any claims Abel has against Bob.
2. Bob and Charlie sign the release. Abel does not sign the release.
There's nothing wrong with that. Charlie was capable of releasing Bob from all claims that Abel had against Charlie, even though Abel didn't sign the agreement. The reason Charlie could do that is because he had obtained an assignment from Abel of whatever those claims might be.
So Abel's signature is not required in order to release Bob from any claims that Abel has against Bob. Because Charlie had the power, under a separate agreement with Abel, to do just that.
pnwmom
(108,978 posts)jberryhill
(62,444 posts)Why does anyone care if Daniels suit has merit or not?
If she wins, she owes Cohen and or Trump 130k and gets to tell us all in detail about sex she had with Trump 13 years ago.
If she loses, she’s broke (and I assume at this point that her funders have set up a maintenance trust of some kind for her) and we don’t get to see Cheetoh’s dick pics, if any.
Humor me. Explain why anyone should care if the suit has merit or not?
Everyone already assumes it is true that Daniels voluntarily had sex for a year with a disgusting human being. Everyone knows she agreed to take 130k not to talk about it, and now has changed her mind. Am I supposed to admire her or cheer her on for that? Why?
And it’s certainly not about the FEC issue, since the fact of the hush money payment is already well established.
For the life of me I can’t understand why anyone cares if this suit has merit or not. Nothing of consequence hangs in the balance for anyone except a small group of self-interested greedy people with negotiable morals. There’s nothing wrong with that either, but why would anyone else give a shit who wins?
pnwmom
(108,978 posts)run-of-the-mill sex with a porn star.
In-Touch has hinted that he might like to be dominated by the woman, which wouldn't fit his macho image, and could open him up to ridicule -- which is the worst possible thing for a narcissist. Or possibly even blackmail.
So that is one possibility.
But other analysts have said that, depending on where the $130K came from -- for example, if it came from one of his businesses -- that he could be in legal trouble for that.
jberryhill
(62,444 posts)Wherever the money came from is not an issue in the Daniels suit, so her winning or losing has no bearing on whether it was a campaign contribution, or wherever it came from. That she was paid $130k is not a contested issue.
I don't know what definition of "blackmail" you are using. But I doubt anyone who is having a "relationship" with an adult entertainer for a year is spending time romantically sitting in bathtubs like a cialis commercial.
I mean, I don't know what "run of the mill sex with a porn star" is about, since my mill doesn't generally run that way. But if he likes something kinky, what's it to me, you or anyone else, in any palpable sense?
What does any of that have to do with ridding ourselves of this clown?
pnwmom
(108,978 posts)jberryhill
(62,444 posts)Yes, that’s exactly what I said. There are issues around the payment, but those tangential and more important issues have nothing to do with the merits of this civil suit.
Whether or not her suit has merit means absolutely nothing.
The payment, and how it was arranged IS a significant issue.
But you don’t seem to grasp that the payment and its implications have already been on the table since having been disclosed months ago.
That has nothing, nada, zip, zilch, zero to do with whether or not Daniels has a viable claim to void the contract.
Neither party in this suit denies she was paid the 130k. The outcome of this suit doesn’t change that. Daniels is not denying that she was paid the $130k. Neither is Cohen and/or Trump.
So, again, could you explain to me why you believe it matters whether Daniels has a viable claim.
In other words, what is the impact, in your mind, on ANY of the tangential issues raised in that article in the following set of outcomes:
1. Daniels wins and gets to talk about having sex with Trump.
2. Daniels loses, and does not get to talk about having sex with Trump.
Explain the practical impact of either of those outcomes, and why either outcome matters.
pnwmom
(108,978 posts)itself. She wins whether or not the lawsuit succeeds.
jberryhill
(62,444 posts)Those things are already out there.
If you think she is pursuing some political result, then I’d like to have what you are smoking.
She was perfectly happy to take 130k to keep quiet instead of speaking out at a time when it would have potentially made a difference.
The only thing the suit determines is whether she can proceed to make a living by talking about sex with Trump.
The details of how the payment was arranged are not going to come out in this proceeding, because she doesn’t dispute the fact that she was paid.
But if you think she filed this for any purpose than to try to get out from under an adverse arbitration judgment, you are kidding yourself.
pnwmom
(108,978 posts)There are lots of new details that the lawsuit made public, as outlined here.
http://nymag.com/daily/intelligencer/2018/03/what-we-learned-from-stormy-danielss-lawsuit-against-trump.html
But I agree -- she ALSO filed it in response to the arbitration action.
And there's this.
Norm Eisen
✔
@NormEisen
BREAKING: Stormy’s suit is more evidence for our @CREWcrew complaint that Trump broke the law by failing to disclose info re the agreement on his SF-278 federal disclosures. For God’s sake, there was a signature line for him in the docs under a fake name!
Link to tweet
?ref_src=twsrc%5Etfw&ref_url=http%3A%2F%2Fnymag.com%2Fdaily%2Fintelligencer%2F2018%2F03%2Fwhat-we-learned-from-stormy-danielss-lawsuit-against-trump.html&tfw_creator=marghartmann&tfw_site=intelligencer
jberryhill
(62,444 posts)...why the merit of the claim make a difference?
Or are you just going to keep posting links to articles that say, yes, the payment raises an issue under campaign finance laws.
You have yet to come up with any answer, by link or otherwise, to my question of “why does the outcome of this suit matter to anyone?”
pnwmom
(108,978 posts)no matter what the outcome of the suit is, because she was able to get information made public that she wanted to make public -- information that could hurt Trump.
But there is still the possibility that she might win the lawsuit, on one of the grounds that her attorney cited. And if the outcome of the lawsuit is that she WINS, then she can go public with everything she has on him.
And whatever it is, he thinks it's worth a substantial amount of hush money.
jberryhill
(62,444 posts)You have projected onto her some sort of altruistic intent which makes zero sense.
If she wanted to make public her relationship with Trump, she could have done so at any time prior to having negotiated this agreement.
Instead, she hooked up with Keith Davidson - a broker of embarrassing sex tapes and other compromising information - and agreed to accept 130k.
Now, you are suggesting that she is somehow motivated to expose the fact that she got paid the 130k which she agreed to accept. Or are you saying that she never wanted the 130k in the first place, and that she was somehow coerced into this agreement? Even she is not claiming that.
Do you think she was suddenly scandalized to realize that she had taken that money in October 2016? Did this realization come to her as some sort of recent surprise? It’s 2018. Was there no prior point in time that she felt it was important to know that she had kinky sex with Trump some twelve years ago?
Cohen admitted to the payment months ago. That fact was already out there.
The notion that she filed this in order to raise ancillary issues about campaign finance laws is laughable. That does nothing for her.
She is not a victim of the voluntary relationship she had with Trump, nor is she seeking to make any kind of political point about campaign finance laws. She has seller’s remorse because she sold short on the proposition that the value of her information about Trump would diminish upon his expected electoral loss. She believes, and correctly, that if she can get out of the contract, she can make more money with her story. The problem is that when she started teasing about “I have a story to tell”, Cohen got an adverse restraining order from the arbitrator.
The political value in this thing revolves entirely around the payment itself, which was known prior to this filing. The political value also has nothing to do with whether her filing has any legal merit whatsoever. The fact of the payment itself is not disputed by either side.
pnwmom
(108,978 posts)a document that falsely denied their relationship.
And I think you are underestimating the political value of her lawsuit and you think I'm overestimating it. We'll see.
Also, CREW thinks the new information is "more evidence" for their lawsuit. We'll see about that, too.
Norm Eisen
✔
@NormEisen
BREAKING: Stormy’s suit is more evidence for our @CREWcrew complaint that Trump broke the law by failing to disclose info re the agreement on his SF-278 federal disclosures. For God’s sake, there was a signature line for him in the docs under a fake name!
Link to tweet
?ref_src=twsrc%5Etfw&ref_url=https%3A%2F%2Fwww.democraticunderground.com%2F%3Fcom%3Dview_post%26forum%3D1002%26pid%3D10353748
The political value of the lawsuit and the legal merit of the lawsuit have nothing to do with each other.
The whole business of having been “forced to sign” the statement is also ridiculous.
First off, the contract itself states that she is bound to sign such additional documents as may be required to effectuate the purpose of the agreement. That sort of clause is itself not unusual.
In fact that is precisely why the last anyone heard from Ivana was when she signed the disclaimer preface to her own book.
What she was “threatened with” was enforcement of the contract and its penalties, if she did not agree to sign the denial statement in order to mitigate the wink-wink hint-hint disclosures she had already made to that point.
I mean, seriously, who would be “angry” that they were compelled to sign a statement denying they had sex with Trump? Or are you going to tell me that she’s a jilted lover, some 12 years after the fact, upset that she would have to deny her burning love for him.
No, it irked her that the denial undercut her recent attempts to monetize her having had sex with Trump. If the “coercion” were any force or threat of force other than enforcement of the contract itself, then her lawyer is profoundly incompetent for not stating that in the complaint.
Sorry, but telling someone that unless they sign a mitigating statement to a non-disclosure contract, then you will enforce the terms of the contract, is not “coercion” any more so than voluntary agreement to th contract in the first place.
pnwmom
(108,978 posts)I read the agreement, and it prohibited her from disclosing anything about their relationship, but it didn't require her to sign a document with false statements in it.
jberryhill
(62,444 posts)Offered a choice between “sign this denial” or “we will proceed to arbitration”?
Sure. Why not?
That’s why her civil complaint completely dances around what “threats” were used. If it were a threat of, say, physical force, that would be a criminal offense, and also actionable as an additional civil claim. Are you saying her lawyer too stupid to realize that?
People privately agree to publicly lie all of time. See, eg, “amicably”.
pnwmom
(108,978 posts)If she hadn't signed it, what would their grounds have been for arbitration? She hadn't broken her agreement yet. Cohen was the one who went public by acknowledging the $130K payment.
jberryhill
(62,444 posts)First, off whether Cohen acknowledged the payment does not release her from her obligations under the contract. That is another broken theory of contracts which the plaintiff's representatives have been selling in the media. Again, if she was under the belief that Cohen had breached the agreement, then she could certainly go to arbitration to determine what the consequences might be.
Incidentally, I see you now acknowledge that the payment itself - which is the only interesting aspect in relation to impact on whether campaign finance laws were broken - was already public information before this suit was filed. In other words, this lawsuit doesn't add anything to those tangential, and more significant, consequences.
"If she hadn't signed it, what would their grounds have been for arbitration?"
That she had been hinting about the relationship in public or had been talking to other people about it. Whether or not that would have been a successful claim in the arbitration is up for debate. But it is not at all unusual for contracting parties to agree to take further acts, as contemplated in the agreement itself, in order to mitigate potential claims under the contract.
And, yeah, they did eventually go to arbitration, because she continued a course of behavior to the effect that she had engaged in the relationship with Trump. She believed she was being clever, but was making it obvious that she had.
Following the dispute provisions of a contract which someone voluntarily signed in exchange for $130k is not some kind of dastardly deed.
But again you miss the point - what was this "duress"? If it was a matter of "we think we have grounds to pursue an arbitration award of a million dollars, and we will decline to proceed if you sign this additional statement", that's not any kind of "duress" or "coercion".
And that's why the Daniels complaint fluffs that point. Instead of pleading the facts that would lead to a conclusion that she signed it "under duress", the civil complaint on that point merely alleges the conclusory statement that it was. It is also why, despite the fact that her lawyer has made numerous TV appearances to grab as much publicity as he can, he hasn't specified what it was either.
Because if it was a threat to enforce the contract and an offer to mitigate breach, that's not any kind of "duress" or "coercion". It's precisely why, despite consuming a vast amount of media around this case, you can't simply state what it was either.
You've followed this closely, so why not spit it out - what was the "duress", "coercion" or "threats"? Surely you must know. There have been numerous media appearances by her lawyer discussing the case. So, what was it?
pnwmom
(108,978 posts)But the lawsuit itself says that he had been making threats before they signed the agreement, so maybe it had something to do with that. But I don't know. Maybe they'll tell us eventually.
You've never responded to Norm Eisen's comment that he thought the lawsuit provided "some evidence" for their own lawsuit at CREW. How come?
jberryhill
(62,444 posts)In other words, her attorney did not plead facts which would demonstrate duress. He's sure talked a lot about it on TV. Being able to say a lot without saying much is a particular skill.
You've never responded to Norm Eisen's comment that he thought the lawsuit provided "some evidence" for their own lawsuit at CREW. How come?
Because it is irrelevant to the question I had asked you.
I'll repeat the question again:
Why does it matter if her suit has any legal merit?
The statement from CREW that, yes, they now have a copy of the document they'd have gotten in discovery anyway is indeed "some evidence". But that is neither here nor there, in relation to my question about the emotional investment in whether the suit is a winner or a turkey. Notice that Eisen ISN'T saying "if she wins, then we'd have something of value".
Do you not understand the question I'm asking?
pnwmom
(108,978 posts)I said that it will be a political win for her and that I realize you disagree. How many times do I need to say that?
LAS14
(13,783 posts)EffieBlack
(14,249 posts)I don't think that "and/or" is always laziness. Sometimes it's the only way to plainly refer to people who need to be referenced but don't both have identical obligations in situations where "and" alone is too inclusive and "or" alone is to excluding.
That said, I do agree that its use in this contract may be due to pure laziness. But generally, use of the term itself is not a bad thing.
gratuitous
(82,849 posts)I said it was "almost always laziness." There's a difference between the two.
EffieBlack
(14,249 posts)gratuitous
(82,849 posts)EffieBlack
(14,249 posts):- )
PoliticAverse
(26,366 posts)and/or is considered to be less ambiguous than 'and' or 'or' alone. When used with two items as in 'A' and/or 'B'
it is overwhelmingly considered to mean ( 'A' and 'B' together ) or ( 'A' alone ) or ( 'B' alone ) are acceptable.
"You may have milk or sugar in your tea." - What if I want both?
"You may have milk and sugar in your tea." - Can I have just sugar?
"You may have milk and/or sugar in your tea." - I can have both or either - great.
Legal article on and, or and and/or:
http://adamsdrafting.com/downloads/Ambiguity-And-Or.pdf
TheBlackAdder
(28,199 posts)LAS14
(13,783 posts)gratuitous
(82,849 posts)If one of the parties was physically located in Texas at the time of signing a Texas notary might indeed notarize the document, even it if it isn't effective in Texas. However, the notary stamp on the agreement and the exhibit just shows up by itself on the signature pages. There's no jurat or space for the notary to sign and date the document. It looks to me like someone just helped themselves to the notary's seal. Legally speaking, that seal is a nullity.
TheBlackAdder
(28,199 posts)jberryhill
(62,444 posts)Daniels is the one in Texas. She's not denying that she signed it. So the formalities of the notary seal are neither here nor there.
gratuitous
(82,849 posts)That would explain why a Texas notary would be called upon to notarize her signature. I agree the formalities of the notary seal are a separate matter. However, if you go to the link I supplied, you can look at the documents. None of the signature lines for any of the parties or their attorneys has the sworn statement bracket or the usual notary language (e.g., "Subscribed and sworn to before me . . ." etc.). Erica Jackson's notary stamp (and no signature from her) simply appears below the place where "PP" signed and to the right of the blank line where "DD" was supposed to have signed. Jackson says she didn't witness anyone's signature and doesn't know how her seal got on the documents.
I don't know the notary rules in Texas, but in Oregon, we have to maintain a Journal of Notarial Acts, detailing the who, what, where, and when of every signature we notarize. I don't do it for attorneys in my office for every routine affidavit, but any deed, affidavit, agreement, will, or what have you that I notarize for a client or other party, you damn betcha I get their signature in my book, along with recording whatever ID they had to convince me they were who they said.
Erica Jackson may be an extremely sloppy notary; it happens. But from the looks of the agreement, it looks like someone just helped themselves to her seal.
jberryhill
(62,444 posts)Of what relevance is it that the notarial seal looks non-compliant?
There is no issue in the civil complaint which is relevant to whether anyone's signature was properly notarized, and Daniels is not denying that she signed it.
gratuitous
(82,849 posts)It's a curiosity, nothing more. It doesn't tend to prove or disprove anything.
jberryhill
(62,444 posts)
Nevernose
(13,081 posts)To be honest, I haven’t read it yet.
But from what I understand, the penalty is a million dollars every time she breaks the NDA. California judges tend to be fairly friendly to the “unconscionable” contract breach defense, and paying zillions of dollars seems ridiculous.
I also think an argument could be made that she could only break the NDA once, because once it’s broken the first time, it’s literally impossible to break it again. That would leave her owing Trump a million dollars per the contract.
LAS14
(13,783 posts)...that she'd been offered a million dollars by 10 different people in the previous 3 days if she would tell all. (Probably magazines???). He said she wasn't taking it.
EffieBlack
(14,249 posts)Another reason that this is problematic for the Trump team is that, while liquidated damages for breach are appropriate, penalties are not. California law forbids the enforcement of liquidated damages that don't bear a reasonable relationship to the actual amount of damages to the other party.
It can be reasonably argued that requiring a million dollar payout for each time Stormy speaks is not even close to being liquidated damages but is instead, the imposition of a penalty.
In my view, Stormy should drop everything she has at one time, take the million dollar hit and then refuse to pay anything more as Trump can't prove he suffered any further damages as a result of her speaking about what she already released.
jberryhill
(62,444 posts)The worst case scenario, looking just at this case per se, for Trump is that Stormy Daniels owes him $130,000.
Other than that, what is the downside for Trump if Daniels wins?
That Daniels then goes around talking about having sex with Trump in 2005/6? Well, that cat is out of the bag already.
So, what is there to "lose" here on the Trump side?
If Daniels wins, she gets to make a lot of money and Trump and/or Cohen (heh) is entitled to $130,000.
If Daniels loses, she goes back to her regular career, and Trump and/or Cohen don't get $130,000.
But, other than that, what's in this for us?
That we get the particular details of what kind of sex they had, where they had it, how often they had it, and whether or not anyone enjoyed it? Is that what we get? Is that what we want?
Nevernose
(13,081 posts)She’s hinted that she has proof. Her friends have hinted that Trump was into being the submissive to Stormy’s dominatrix (not kink shaming, but Trump’s bass wouldn’t like it).
She signed the documents with her othe name, and did all of the initials with that name: PP.
There really might be a pee-pee tape out there. It’s just not what we thought it was.
The conspiracy part:
After a game of bilingual telephone, the story gets back to Russian spy agencies, PP is taken in the context of the dominatrix thing, some details get switched around, “PP” is assumed by non-native speakers to be referring to piss. That’s the story Chris Steele eventually gets and puts in his memo. The story and tape are true, but his sources got the details wrong.
jberryhill
(62,444 posts)So they got the “details wrong”? You mean the details of it happening in Moscow with a collection of Russian hookers whom Trumps own bodyguard admits were offered to him before he retired for the night, and the other “detail” of it happening in 2013 instead of throughout 2005 and 2006?
We seem to have different understandings of what the word “details” means.
treestar
(82,383 posts)Lawyers do what will benefit their client. What the client wants and needs. If that helps the client they will use it. Lawyers are too easy to scapegoat.