I looked at the Stormy Daniels confidentiality agreement, the one intended to keep under wraps her fling with Trump—excuse me, her alleged fling. I figured it would have been remiss of me not to look at it. (It’s exhibit 1 to her complaint, here. If you’re not familiar with her and the saga of this confidentiality agreement, go here for one article among zillions.)
I can confidently say it’s the most flamboyantly dreadful contract I can recall seeing. Trust me, I’ve read my share of bad contracts, but bad business contracts tend to relentlessly repeat standard forms of dysfunction. By contrast, on display in the Stormy Daniels contract are myriad standard and wildly original forms of suboptimal prose and layout. It’s a dumpster fire.
The first thing that caught my eye was use of and/or in the introductory clause. That prompted the following tweets:
But because of that “and/or”, one could argue that the contract is valid if just one of EC and DD signed it. But I have never seen “and/or” used in this context. Gobsmacked.
— Ken Adams (@AdamsDrafting) March 7, 2018
That issue might actually have a bearing on the dispute. Otherwise, my only concern was the quality of the drafting, and what I saw established that the drafter was semiliterate, transcendently careless, and not a transactional person. You’ll find below some random examples.
But before that, why did I bother looking at this contract? Well, first, everyone loves a train wreck. Second, and more seriously, I, like everyone else, have been in the peanut gallery during Trump’s reign. Here, for the first time, something related to Trump has come within my sphere of competence, and it’s sorely lacking. And third, if anyone comes away from this with a sense of what’s required for clear contract language, that would be a bonus.
Now, on to the examples:
- Why is the first page given the page number zero?
- Hey, let’s misspell nondisparagement in the title!
- Why are the introductory clause and the recitals presented as if they were part of the body of the contract?
- The recitals appear to contain obligations. That’s not what recitals are for.
- The contract is full of idiosyncractic blather such as “This Agreement is entered into with reference to the facts and circumstances in the following recitals.” Recitals do what they do: they don’t require any fanfare.
- Similarly pointless and idiosyncratic is “the Parties adopt the foregoing recitals as a statement of their intent.”
- The heading 3.0 should be followed by section 3.1. Instead it’s followed by the heading 3.0.1.1. That’s like no multiple-numeration scheme I’ve ever encountered.
- Everything under 3.0 and before 3.1 uses hanging indents. The rest of the contract uses first-line indents. WTF.
- In section 3.0.1.1.2 (crazy enumeration!), an obligation is imposed on PP’s lawyer, although they’re not party to the contract.
- Section 3.1 (finally!) is given the heading “Undertakings & Obligations by PP.” What’s the difference between an undertaking and an obligation?
- One of those undertakings and obligations is “PP shall execute this Agreement.” So if PP hadn’t signed the contract, she would have been in breach of the contract! Hahahahahaha.
- Here are the verbs used with respect to PP’s handling of the “Property”: sell, transfer, turn-over, assign, deliver, divest, convey. Hey, why not add a few more?
- Blocks of text (a) through (g) in section 3.1 start as tabulated enumerated clauses and end as subsections. That’s messed up.
- Tabulated enumerated clause 3.1(c) somehow acquired a solitary second-level tabulated enumerated clause, clause (1), but it’s not introduced as a tabulated enumerated clause should be. I assume it should have been given the enumeration (d).
- Section 3.2 says “all of PP’s respective rights, title, and interest in and to the Property.” The “respective” would make sense only if this sentence applied to more than one party.
- Section 3.3 says “PP represents and warrants … that upon such delivery to DD, PP shall not maintain ….” In other words, with respect to that language of prohibition, “represents and warrants” constitutes what I call “throat-clearing”—a redundant verb structure preceding what should be a stand-alone provision.
- Section 4.1 uses both means and includes as definitional verbs. See A Manual of Style for Contract Drafting ¶ 6.4 for why that doesn’t make sense.
- Section 4.2 goofily states tangible and intangible in italics.
- Gotta love heading 4.3, “Representations & Warranties and Agreements.” Note that section 3.3 and section 4.2 contain, ahem, representations and warranties, so structure wouldn’t seem a strong point of the drafter. (See this article for why represents and warrants and its variants are pointless and confusing. But that’s a nuanced discussion; we’re not in the realm of nuance with this contract.)
- More throat-clearing in 4.3.2(a): “PP agrees and warrants and represents that PP will ….” And why switch the order to “warrants and represents”?
- In 4.3.2(a) will is used to express an obligation; elsewhere other verb structures are used to express obligations. It goes without saying that the verb structures are chaotic throughout this contract; they don’t come close to complying with MSCD‘s categories-of-contract-language framework. For more about that, go here.
- It looks that the heading to section 4.3.3 should have included “Tangible and/or Intangible Confidential information created by or relating to DD.”
- Section 4.3.3 contains the defined-term parenthetical “(‘Third Party’ and/or Third Parties’)”. It’s always silly to state a defined term in both the singular and the plural when you’re defining it; furthermore, this isn’t even the way to do that. Note in passing the weird and/or and the missing opening quotation marks.
- Section 4.3.5 says “PP separately and further warrants and represent ….” The “separately and further” is redundant. And what’s a botched subject-verb agreement among friends?
- The drafter has an uncertain and shifting understanding of the role of punctuation in parentheticals.
OK, I’ve had enough, and I’m only halfway through. Over and out.
Michael Cohen has probably done dozens of these contracts, for dozens of the paramours of President Dennison, I mean Mr. Dennison. I suspect he cobbled together this mess from several of the prior excretions, all of which were themselves different andf internally inconsistent. And because this was such an important contract for Mr. Dennison, who was seeking to become President Dennison, Cohen got out his handy thesaurus to make sure he had every nuance and shade of meaning covered. Why just have something sold or transferred to Mr. Dennison, when there are so many other things that can be done to the item in question to get it into Mr. Dennison’s tiny hands?
Oh, and I would argue that the “and/.or” phrase makes the contract entirely uncertain. Stormy Weather (I wish that were her name) contracted with somebody, but we don’t know who. Mutuality of remedy becomes impossible if we don’t know with whom she contracted (especially if he didn’t sign his name, er pseudonym) to the contract or clarifying side letter.
As far as contracts go, it’s pretty much par for the course for Cohen. His other handiwork during the campaign was dissected much to the delight of those of us for whom the English language is more than a passing fancy.
Cohen didn’t draft this contract. It was drafted by Daniels’ attorney, Keith M Davidson. Compare with the Davidson drafted contract published via Bollea v. Gawker and you will see compelling similarities.
Similar contract drafted by Keith M Davidson is here:
http://hpc.pinellasclerk.org/CaseData/12-012447-CI/22644495.tif
Interesting. I made a point of not identifying the drafter, but I had assumed it was someone on the Trump side. I’ll keep an open mind.
My complements on your swift noting of the “and/or”. I also saw it on first reading but it seems to have escaped almost everyone else’s attention. I expect that may be a Cohen red-line to the Davidson boilerplate.
You can clearly see that California law interprets ‘and/or’ to mean ‘one or both’. This can be made clear in its usage in California Penal Code PEN 667…
On page 8, Davidson’s info is typed, but Cohen had to write his in by hand (with his actual LLC, instead of the EC, LLC pseudonym, destroying the purpose of Exhibit A).
Also, the most glaring error I saw in 4.2 was that it has PP representing and warranting that she HAS disclosed confidential information to people other than the 4 listed below.
(In passing; I’m a political blogger who stumbled over this, and I just saw interesting article on Mr. Davidson and the case.)
“Indeed, some quick Googling and Nexising show Davidson has been involved with an almost comical number of cases involving sex tapes, hush money
agreements, and sex scandals. […] In any case, this is Davidson’s racket: find (mainly) women with stories about (mainly) wealthy men, negotiate settlements and get a nice contingency fee. But there are a few indications that it may be a bit
murkier. […] As I’ve written in a few other posts, the Daniels’ agreement seems almost comically adverse to Daniels. Was Davidson zealously representing
Daniels’ interests in that negotiation?” – Josh Marshall, editor and publisher, Talking Points Memo, https://talkingpointsmemo.com/edblog/stormymat-or-why-did-stormy-and-2nd-trump-girlfriend-have-ndas-negotiated-by-the-same-lawyer
There’s also an odd pronoun shift to “she” toward the end of the document. I’m not sure if I am misreading, as I’m not an attorney or whether the error has any significance. Here’s the screenshot as I can’t cut and paste the PDF. It’s the point where DD claims the right to do whatever he wants with the materials but the contract says “to do as SHE sees fit.”
It’s all very sloppy. There would seem to be no antecedent to the pronoun, as DD is not a female.
https://uploads.disquscdn.com/images/49d76d74219c37ab49fbf3496ff5e1cc33b243260dcc4aa7852825fd90aeb7fe.png
It’s just one of a number of typographical errors in that paragraph. Perhaps it was cut and pasted from an earlier assignment where the assignee was female.
I wondered about that one because it creates a problem in meaning. Pronouns must refer to a noun that has already been used in the discourse. “She” makes it seems that the female mentioned in the contract has the power to with “it” (arrggghh–singular) “as she do deems.” Would seem to me to create a question as to who decide what to do with what DD creates. But as I say, not a lawyer.
The contract gives both benefits and obligations to PP and DD, but EC the LLC has zero duites or obligations by the terms of the contract. The LLC was not obligated to pay anything at all under the contract, as it is only in the HEADING- explicitly non-substantive- that it is suggested that the money is required to paid by the LLC. The body of the contract does NOT specify by whom the money shall be paid. So lets say that Stormy has breached the contract- What remedy does that give to LLC? Only DD is given a remedy, and he’s not a party to the arbitration!
So . . . I love this! I teach college composition–You’ve JUST proved the point I make to my students, ad infinitum, that precise diction, to say nothing of correct formatting, MATTER! Sloppiness conveys more about the state of mind of the writer than he or she would care to admit! Thank you!
In contracts, where the language is limited and stylized and generally much is at stake, it matters a lot.
“I hire the best people.”
can Mueller subpoena Cohen’s files for other contracts?
Is there any point to defining “third parties” at all if the intent is to include anyone that isn’t a party to the contract?
We have bad contract drafting here in England, but nothing in this league.
Over here, settlement agreements can be oral, so that if one of them (or even neither of them) signed, it can still be binding. You’d need other evidence (eg conduct) to show the parties intended to be bound. But if DT acted on it (eg paid her money), that would be good evidence there was a contract, and that this document describes the terms of that contract (given there is probably no other existing document on the topic).
Does she have any prospects of arguing it isn’t binding because he didn’t sign?
As a matter of national honor, I feel compelled to point out that this is truly exceptional for us too!
The side-letter agreement provides for the actual identities of the aliases used in the Settlement Agreement. (And is included in the definition of Confidential Information) On the final page, it reads “…when each Party has signed and delivered one such counterpart” the Side-Letter shall be binding and effective. DD did not sign this document, either. Does that in any way impact the validity of the Side-Letter and/or (heh) the underlying Settlement Agreement?
I can’t even express my amusement about this post. Dumpster fire is the perfect description. What do you think about the news story that young Stormy offered to return the money so that she wouldn’t be obligated to confidentiality? It made me spit out my coffee!
It’s theater. Disputes like this invariably involve a fair amount of theater. I’ll stick with contracts, thanks!
Quick everyone, let’s see if we can push hard enough and get a part 2 to finish out the Dumpster Fire!
I for one am hooked.
I’m afraid there won’t be a part 2. It would just be more of the same, and we wouldn’t learn anything we didn’t know already. :-(
Fair enough, fair enough………
Still, it was fun and informative while it lasted.
Yes, it certainly was fun!
There is a sections 4.3.2, but no 4.3.1.
In 4.3.2 (d), PP agrees not to use DD’s name, which might raise some questions if someone asks her to name the president of the USA.
In 4.3.2 (e) a semicolon is used with a conjunction.
In 4.3.2 (i) “…compensation from the sell…” and “…any efforts to sell, license and/or any other exploitation of the Images…” ar ungrammatical and near-indecipherable.
4.3.3. begins with the “sentence”, “Tangible and/or Intangible Confidential information created by or relating to DD.”
In 4.3.3, after saying she can’t disclose to any person, group, firm, or entity, it then goes on to list a bunch of specifics, in case the reader doesn’t understand that friends, associates, and journalists count as people. This same pattern is repeated in many other places.
For some reason, the agreement not to confirm the existence of the settlement agreement is tacked onto the end of 4.3.6 “Agreement By PP Not to Disparage DD”, “fore greater clarity.”
You have a liquidated damages clause and then an injunction clause. Wrong order? Only if an injunction will not be granted is a remedy at law adequate? Doesn’t say that. So, they have no right to a TRO.
The only people willing to work for trump are people who are not good at their jobs.
It is clear that California Law interprets ‘and/or’ to mean ‘one or both’… several examples of its use… best one I found is California Penal Code PEN 667.
Sorry Stormy, you are going to have to keep working on your back@!! And… Stormy is SORRY!
It seems important to note that as far as I know, every law firm with competent attorneys refuses to work for Trump because he’s not real good about paying his bills.
So here’s another case showing that one gets what one pays for.