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Friday, February 16, 2018

How to Breach a Gag Agreement




On the heels of Dear Dr. LOVELESS Valentines HR Edition last week, the burning question this week is; does Stormy Daniels get to spill the beans on her alleged affair in 2006 with Donald Trump? Despite the fact that she was under a non-disclosure agreement? Maybe yes, and maybe no. It may depend on what the agreement actually said.

Quick recap: In 2016, The Wall Street Journal reported that porn star Stormy Daniels was paid $130,000 during the 2016 presidential campaign to keep quiet about an alleged sexual relationship with Donald Trump that took place in 2006. The WSJ story blew up again more recently. Ms. Daniels had talked about the alleged relationship before 2016, but she'd kept quiet since entering into the agreement.

This week, President Trump's personal legal counsel, Michael Cohen, disclosed that he (Mr. Cohen) is the one who paid the $130,000 to Ms. Daniels, out of his own funds, and that neither the Trump Organization nor the Trump campaign paid it, either directly or indirectly. (Yeah, I know.)

So now Ms. Daniels is saying she is no longer bound by the NDA in her agreement because Mr. Cohen violated it first. Is she right?

To be able to answer that question, we'd have to see the NDA. If it says only that neither party (or their representatives) will discuss the agreement or the situation that resulted in the agreement, with no exceptions, then she may be correct.

But many NDAs (including all that are drafted by me) make an exception for truthful disclosures that are required by law, or are disclosed pursuant to a subpoena or a government investigation. This is important because some say that the payoff to Ms. Daniels may have violated federal election laws. Although Mr. Cohen released a statement to The New York Times, it was apparently in connection with his formal response to a complaint about the payoff that was filed with the Federal Election Commission. The FEC complaint has been in the news since at least January, so that cat has been out of the bag for a while.

If Mr. Cohen made the media statement in connection with his response to an FEC investigation, and if the FEC investigation had already been made public by someone other than himself or anyone on the Trump team, and depending on the applicable exceptions (if any) to the NDA, then Mr. Cohen may not necessarily have breached the NDA. Which means that Ms. Daniels might still be bound by it, too.

Ms. Daniels claimed on Valentine’s Day to have a "Monica Lewinsky dress" that she is going to have DNA-tested. You will recall that the stained navy-blue GAP cocktail dress of Ms. Lewinsky is still considered one of the most famous articles of evidence in history.  Ms. Daniels claims that the shimmering gold mini dress with a plunging neckline was kept in pristine condition after her alleged 2006 sexual encounter with Trump at the Lake Tahoe hotel suite. Ms. Daniels is reportedly planning on having the dress forensically tested to search for any DNA that proves she isn’t lying about her tryst with Trump, including samples of skin, hair or … anything.

Common Sense Counsel: Be careful what you sign and be careful what you say. And save the evidence.

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and can be contacted at teden@constangy.com or 334-246-2901. Tommy’s Law Partner Robin Shea is Dr. Loveless and the Stormy Daniels story author.

Monday, February 5, 2018

Why Quash the FISA Surveillance Warrant?

As a follow-up to the OA News AP Sunday article “Trump claims memo totally vindicates him,” the FISA Memo released last week revealed what some might call prosecutorial misconduct by the FBI or DOJ attorneys who signed the FISA surveillance warrant application on Trump advisor Carter Page. The FISA Court is actual composed of seven rotating United States Court District Judges from various regions of the country all appointed by U.S. Supreme Court Chief Justice John Roberts for a seven year term. Once a quarter, for one week, one of the seven will come to the Washington to hear a FISA warrant application for surveillance related to national intelligence. From news reports, four different FISA Court Judges heard FISA applications concerning Carter Page, most likely presented by the same FBI or DOJ attorneys. If in fact, as alleged in the FISA Memo, the FBI or DOJ attorneys failed to fully disclose to the FISA Judge that the source was not creditable, bias, political opposition research, etc. then all four FISA warrant applications can be retroactively challenged on a Motion to Quash. At that point all four District Court Judges who ruled could meet collectively to hear the Motion to Quash. If granted, all the “Fruits of the Poisonous Tree” in any manner related to the improperly granted FISA surveillance warrants would become of no legal significance.  A Federal District Judge who believes an attorney was concealing facts or bias of a source, especially in a probable cause hearing, can take a number of steps to correct the injustice. It appears the FISA Memo was released to give the FISA Court a process to begin that Motion to Quash challenge, or cause Chief Justice John Roberts to take the bull by the horns in his capacity as the FISA Court judicial appointing authority, to shine a bright light sua sponte (on his own accord).  If that happens, look for an argument by the Trump and DOJ lawyers that the Robert Muller appointment was one fruit of that poisonous tree.


Tommy Eden is an attorney who lives in Auburn and a guest Columnist to the OA News. 

Friday, February 2, 2018

Vertigo Disability – How to Win a Difficult Case


Susan Morris-Huse worked at Geico as a TCR I Supervisor, an individual who supervises the processing and settling of claims in a telephone claims unit. She was diagnosed with Meniere’s Disease, a disease of the inner ear, in the mid 2000s and for about a decade took intermittent disability leave when the disease. It would flare up causing her “random attacks of vertigo, and nearly chronic bouts of dizziness and imbalance,” according to her lawsuit filed in Federal Court in Tampa.

After undergoing a procedure in 2013, her doctor wrote to Geico recommending that Huse be allowed to work from home because she could not “reliably drive long distances and do things that required walking up and down stairs.” Geico, in response, arranged for her to carpool with co-workers, allowing her to avoid climbing stairs and providing her a few offices spaces for her to rest should her symptoms act up, but did not let her work remotely.

Huse returned to work using the ride-share system and was able to make her shifts for several months until she transferred to a different office where she did not have to drive as far to work. But she could not work after June 2015 and went on long term disability. In 2016 Huse filed suit alleging that Geico did not accommodate her disability under the ADA. The Federal Judge ruled on Tuesday that the accommodations Geico provided Huse were reasonable, even if they weren’t the accommodations she preferred, and dismissed her lawsuit.

Common Sense Counsel: The ADA requires employers to provide “reasonable accommodations” that allow workers to overcome disabilities and perform their jobs so long as these accommodations do not impose an “undue hardship” on the business. The Judge held in this case it was enough that Geico arranged for her to get rides with co-workers and did not require that she climb stairs. The Judge added that telework was not a reasonable accommodation in this case because Huse’s job required that she provide in-person guidance to the workers she supervised and monitor their calls using software available only at Geico’s offices; ruling that “The undisputed evidence demonstrates that Huse held an interactive job, that used technology available only at the office locations, and which required her to have a regular, physical presence.” The federal judge’s analysis of Huse’s written Geico job description as a TCR I Supervisor was critical to the favorable outcome for Geico in this case. Never underestimate the value of a well drafted, legally compliant job description, and wise legal counsel on patiently handling disabled workers. Preventive preparation and patience can keep you from getting dizzy when the lawsuit arrives.


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Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork Geico was represented by Tommy’s Partner’s Angelique Groza Lyons and Sean Douthard.