LOS ANGELES – Attorneys representing Essential Consultants, the company established by Donald Trump’s attorney Michael Cohen in negotiating a nondisclosure agreement and settlement with Stormy Daniels (AKA Stephanie Clifford) to maintain her silence concerning her alleged affair with Trump, filed a motion in federal district court in Los Angeles on Monday, asking the court to compel arbitration in the case, pursuant to the terms of the disputed settlement agreement.
In his memorandum in support of the motion, Essential Consultants attorney Brent Blakely argues the “strong policy favoring arbitration set forth by Congress in the Federal Arbitration Act (“FAA”) dictates that this motion be granted, and that Clifford be compelled to arbitration, as she knowingly and voluntarily agreed to do.”
Blakely also argues Clifford’s assertion in her first amended complaint (FAC) that the settlement agreement was never formed because it was not signed by Trump is an argument “without merit.”
“The first paragraph of the Settlement Agreement defines the parties to the agreement as EC, LLC ‘and/or’ David Dennison (DD), ‘on the one part,’ and Peggy Peterson (PP), ‘on the other part,’” Blakely notes in the memorandum. “This provision demonstrates the parties’ intent for the Settlement Agreement to be binding once signed by EC and Clifford, and regardless of whether it was also signed by DD.”
Blakely further argues that in “conformance with this intent, and according to her own admissions, Clifford and EC signed the Settlement Agreement, and Clifford accepted $130,000 in consideration from EC, despite not receiving a signature from Mr. Trump.”
Throughout the memorandum, Blakely argues that the decision to compel arbitration in the case should not be a close call for the presiding judge, S. James Otero, in part because the FAA “establishes a liberal policy favoring the enforcement of arbitration agreements.”
“The FAA ‘mandates that district courts shall direct the parties to proceed to arbitration on issues as to which an arbitration agreement has been signed,’” the memorandum states, citing the case Dean Witter Reynolds, Inc. v. Byrd. “The FAA ‘is phrased in mandatory terms,’ thus a District Court ‘has little discretion to deny an arbitration motion,’” the memorandum continues, now citing Republic of Nicaragua v. Standard Fruit Co.
In addition to arguing for the validity of the settlement agreement and its arbitration clause, Blakely’s memorandum asserts Clifford has violated the agreement (and a subsequent temporary restraining order) multiple times in recent weeks.
“Clifford has violated the Settlement Agreement and the TRO by, among other things, filing the Complaint and FAC in this action, and also by disclosing Confidential Information to the news media, including in a nationally televised interview with Anderson Cooper on 60 Minutes, which reportedly was watched by twenty-two million viewers,” the memorandum states. “Clifford further breached the Settlement Agreement by sending her attorney of record in this action, Michael Avenatti, to participate in dozens of interviews on national television programs, wherein he has repeatedly disclosed Confidential Information.”
In any event, the memorandum argues, Clifford’s challenges to the nondisclosure and settlement agreement “should be decided by the arbitrator, not the court.”
“Clifford’s newly asserted defenses to the enforceability of the arbitration provision in the FAC are also the same as her defenses to the validity of the Settlement Agreement as a whole,” Blakely argues. “Thus, the ‘crux of the complaint’ is a challenge to the Settlement Agreement as a whole, not the arbitration provision contained therein.”
While the motion to compel arbitration was filed on behalf of Essential Consultants, attorneys for Trump have also filed a joinder to the motion, which simply states “Defendant Donald J. Trump hereby joins in defendant Essential Consultants, LLC’s (“EC”) Motion to Compel Arbitration and consents to arbitration of the claims against him and EC in this matter.”
While Clifford’s legal team has not yet responded in court filings to the motion to compel arbitration, Avenatti has publicly vowed to “vigorously oppose” the motion.
We will vigorously oppose the just-filed motion by DJT and MC to have this case decided in a private arbitration, in a private conf room, hidden from the American public. This is a democracy and this matter should be decided in an open court of law owned by the people. #sunlight
— Michael Avenatti (@MichaelAvenatti) April 2, 2018
Avenatti also took the opportunity to note something not addressed by any of the recent filings.
And the Declaration Mr. Cohen just filed is more interesting for what it DOES NOT state – it does not state that he never discussed the agreement with DJT, that DJT did not know about the agreement, or that DJT did not ultimately pay the $130k (all issues DJT is also silent on).
— Michael Avenatti (@MichaelAvenatti) April 2, 2018
