Can't she just tear up the NDA, give them their $130K back, and write a book?

[garybeck]

the book would get her more than $130K.

what happens if you break an NDA? Its a private agreement so no laws are broken. I would presume they could demand the $130K back and that's about it?

[unblock]

1. contracts don't work like that. you can't rip them up unless the contract specifically says you can.

in this case, donnie can sue for damages. i believe the contract specifies $1 million per breach of confidential information.

[Nevernose]

8. Thats probably totally unenforceable

Because the penalty is so completely ludicrous. It’ll be hard to argue to a judge that the penalty should be more than the initial payout.

[unblock]

9. On the contrary, and non disclosure agreement may not even make sense if the damages are limited

to the initial payment.

It’s almost like buying an insurance policy that can never pay more than the premiums.

It has to be this way. Consider a payroll provider, who is in a position to cause massive damage to a company should it reveal everyone’s compensation. No way that company would be satisfied with fees paid. And no way any court would see that as equitable.

My company is usually able to negotiate such limitations, but only because of other commercial considerations. It’s a tough argument and our clients’ lawyers really push back strongly on this point. But that’s a commercial discussion. Legally, unless damages are spelled out ahead of time, they can be unlimited.

[pnwmom]

15. One thing I haven't seen anyone talk about is that she wasn't given all the consideration

the agreement called for. Besides the money, she was supposed to receive in consideration DT's release of his previous claims against her -- which he was supposed to do by signing the contract. But he never did. So she didn't get her release.

Is that enough to void the contract?

[unblock]

17. Unclear.

She did get the money, or presumably she would have mentioned not get paid in her complaint. It’s not clear if the entire contract is voided without Donnie’s signature or only a portion of it.

Moreover, Donnie could always produce a signature at any point. This is an interesting gambit. Maybe she’s hoping Donnie will prefer to deny any involvement.

[pnwmom]

21. I realize she got the money. But the money wasn't the only consideration.

His release of his previous claims against her was also part of the consideration, and I doubt the EC LLC had the power to promise that DT (who has been claiming ignorance of the whole agreement) would never sue her.

From the document:


2.5 The parties agree that the claims released include but are not limited to DD’s claims against PP as having allowed, whether intentionally, unintentionally, or negligently, anyone else other than those listed in Section 4.2 herein below to become aware of the existence of and content of the property, and to PP’s having allegedly engaged in efforts to disclose, disseminate, and/or commercially exploit the Images, and/or Property, and/or Confidential Information, and any harm suffered by DD therefrom.

2.6 These recitals are essential, integral, and material terms of this Agreement, and this Agreement shall be construed with respect thereto. . . .

4.3 (a) Representations and Warranties and Agreements by DD. The following agreements, warranties, and representations are made by DD as material inducements to PP to enter into this agreement, and each Party acknowledges that she/he is executing this Agreement in reliance thereon:

6.0 Mutual releases. Except for the Rights and obligations of the Parties set forth in this agreement, DD, . . . absolutely and forever releases and discharges PP. . . from any and all claims . . . from the beginning of time to the effective date of this agreement.

“8.6: Each of the parties represents and warrants . . . that this agreement, when signed by all parties, is a valid and binding agreement, enforceable in accordance with its terms.”

[unblock]

24. Interesting that when signed by all parties is written into the agreement.

It’s generally a completely unnecessary phrase, as the contract isn’t binding until properly executed. That normally doesn’t need to be spelled out. But it does make it seem that Donnie signing at a much later date was originally contemplated. Perhaps a Freudian slip of sorts on cohen’s part.

It would be interesting to see if a court can make it partially enforceable, and what that might entail. Hopefully that copyright transfer to Donnie wouldn’t be enforceable.

Again, though, Donnie can always produce a signature later — but would he?

[pnwmom]

25. Right -- would he? Maybe not if he were trying to maintain deniability. Which he's still doing.

[unblock]

29. My guess is that he produces a signature once hes out of office

[garybeck]

10. so as long as her book deal is more than $1,130,000, she's in business

seems doable to me.

break the promise.
pay the fine.
write the book.
rake in cash.

[unblock]

12. The contract gives Donnie copyright over all that

The story isn’t hers to sell, she sold it to Donnie.

That’s why she’s trying to get the court to invalidate it.

[pnwmom]

16. A copyright only exists for items created at the time of the agreement.

New things she wrote about him now wouldn't be covered by that copyright -- but she couldn't use items like her own old texts without getting the agreement voided.

[unblock]

18. Presumably he has copyright to the whole sordid story

So any interview she gives or book she writes after the contract was sign but substantively about the story of the affair prior to the contract would be Donnie’s property.

Of course, if the had any nookie *after* the contract was signed, that would be fair game... and make Donnie even dumber than we already think he is.

[pnwmom]

20. Copyrights don't work that way. They apply to specific creations that are already done,

Not future original work.

[unblock]

22. But if I have copyright on a story idea and pitch it to Hollywood,

and they make a movie based on my story, they have to pay me. Not all the money they made on the movie, but they have to pay me something reasonable for the story.

So Stormy simply repeats the old story, that’s presumably all Donnie’s. If stormy creates something derivative of that story, she still has to pay Donnie something reasonable.

[pnwmom]

23. Copyrights don't apply to general ideas. Writers are always afraid that their ideas will be stolen,

but there's no way to copyright a general idea.

http://www.writersdigest.com/online-editor/can-you-copyright-an-idea

Copyrights cover “original works of authorship” that the author fixes in a tangible form (written on paper, typed on computer, scribbled by crayon on a napkin, etc.). In other words, it protects the specifics of your book after it’s written. No one can steal, reprint or profit from your work without your consent. Though, no matter how hard you try, you can’t safeguard the idea behind your story.

Think about it like this: No one directly copied William Shakespeare’s Romeo and Juliet word-for-word and slapped their name on it, but they have used his idea—a love story about two young people from rival families— over and over again. West Side Story fits the bill (two lovers from rival gangs). Even Disney’s High School Musical has the same plot (rival high school cliques).

Now . . . both West Side Story and High School Musical are copyrighted, so no one can steal significant details from them. But, much like your idea, they can’t stop others from using the basic concept.

[Mosby]

31. trump didnt sign the nda.

I'm not a laywer but I suspect that's significant.

And his people have commented about the situation like sanders, that opened the door.

[unblock]

32. open question as to whether or not he did not (or will not) sign it.

the fact that she produced a document without his signature is extremely weak proof. in any event, it's impossible to prove he never signed it. "all" donnie needs to do is produce a copy with his signature. in practice, he could do this today, tomorrow, or the day after he leaves the white house (he can claim he signed it ages ago, it's next to impossible to prove otherwise.)

but this may well be the gambit, stormy could be figuring that donnie will prefer to claim he has nothing to do with any of this and therefore donnie will not produce a signed version, even if he actually did already sign it.

[onenote]

2. No.

Rescission of a contract requires the agreement of both parties unless it is ordered by a court.

[garybeck]

11. and if there is $1M penalty for breaking it.... perhaps she could afford it with a book deal, or

a paid website to view pictures of his little wee-wee !

[jberryhill]

13. It's 1 million per incident of disclosure

Unless you are suggesting the books be sold at $1M a piece.

Even then, it would be argued that each factual assertion therein is a distinct disclosure.

[bettyellen]

3. If she had done it quickly, maybe. For now the penalty is 1 million per disclosure....

So her best bet is to get mega money for one big tell all.
Apparently she’s testing ways to get out of it and the secret gag order- trying to see how much she can up the payout(s).

[JPK]

4. I'm sure a book publisher would cough up at least that for the goods

Even some in Hollywood would be eager to buy the rights too.

[NCTraveler]

5. Its a contract. Contracts have significant protections in every state.

Society would break down under your concept. Buyer beware and survival of the fittest is as anti-progressive as it gets.

[beachbum bob]

6. a gofundme effort would net her millions....

more than enough to cover her breaking her NDA but perhaps the many others out there too...where's larry flint and his deep pockets when you need it??

[Hoyt]

27. I think you are right. I'd contribute. At least she's taking the buffoon on, at risk to herself.

[The Velveteen Ocelot]

7. No. I believe there's a penalty or liquidated damages clause

that would require her to pay a lot of money for breaking the agreement. No criminal laws were broken, but the parties are bound by the principles of civil contract law. Her lawyer is arguing that contract is void because Trump didn't sign it; one might also argue that the contract is void as against public policy, since it's an agreement for hush money to cover up an illegal/immoral relationship. But most contracts are enforceable as long as there was consideration (an exchange of something of value) for the agreement.

[OhioBlue]

14. So he sues her for damages and proves that it is true?

I think everyone with a Trump NDA should break them all at the same time. There has to be thousands.

It seems like now that he is potus and not a private citizen, there could be a joint counter suit?

[djg21]

19. Contains a liquidated damages provision.

Ms. Daniels would be on the hook for $1 Million for each breach or disclosure. That is why she brought her lawsuit, which is for a declaratory judgment; she’s not seeking a monetary judgment, but rather a decision and order declaring that the contract she entered is not binding. If she prevails, she will sell her story or write a book.

Why she didn’t demand more than $130,000 in the first place is a complete mystery. Ms. Daniels appears to be as big of a moron as Trump. The two of them deserve each other,.

[Vinca]

26. She should bide her time and go through the court system. If Don didn't sign it, it's unlikely

to be upheld. In the meantime, interest keeps building and that can only mean a bigger payday in the end for Stormy. Her only peril is if the 4 people she shared whatever she has with have copies and they sell what they've got first.

[no_hypocrisy]

28. Here's the problem(s):

Even though both parties didn't sign the contract, substantial performance of the subject matter has occurred, potentially making it an enforceable agreement. This kind of contract doesn't require a "writing" or having it recorded to paper. OTOH, Trump would have to prove that the contract pertains to him exclusively and definitively. Not sure he can or wants to do that.

[rickford66]

30. She could write a fictional story.

Not mention Trump, but say that the story is based on her real life experiences.