Does Stormy have a good case?

[jberryhill]

71. It's not relevant to the claim being made

There are two parties to the contract:

1. Daniels

2. EC LLC "and/or" David Dennison

That is TWO contracted parties. That is not THREE contracted parties. Like a computer program initialization of variables, the first thing a contract does is to define "who are the parties". Individual persons might have various jobs to do in performance of the contract, but there is NO allegation in this contract that "DD" did not perform all obligations under the contract anyway. So that's something of a "so what?" Given that EC and David Dennison are defined as a joint party, this is like saying that both you and your spouse need to both sign every check drawn on your joint bank account. No, you don't.

While the "and/or" wording is interesting, the literal interpretation of "and/or" is that either one of them suffices for the other. It is quite common in contracts to have a "party" identified in the preamble as an assortment of various individuals and entities, which are treated as a single party for the purpose of the contract.

As to any independent obligations of DD set forth in the contract - they have been performed. DD has not, according to the complaint itself, initiated or taken any action under the contract. In the recitals, EC is required to make the payment. The absence of Trump's signature is irrelevant to the fact that she was paid in accordance with the contract, and likewise irrelevant to the claim that Cohen - a signatory for EC LLC - is claimed to have initiated an arbitration. Even if we quibble over what "and/or" may have meant there, it is very clear that one signatory party has initiated an arbitration against the other signatory party.

And it is on that point where the Complaint - and again, I'm just looking at this thing as I would any other civil complaint - resorts to silly and fluffy phrasing specifically:

At 21 -

"The agreement also required the signature of parties to the agreement, including that of Mr. Trump"

The agreement states no such requirement. Moreover, it says it can be signed in duplicate originals. Whether she has a signed copy of it or not is not even relevant to whether he signed it, and filed it away, even if he did not deliver a signed copy.

"Moreover, as is customary, and widely understood at all times that unless all of the parties signed the documents as required, the Hush Agreement, together with all of its terms and conditions, was null and void."

Notice the broken grammar there. I'm familiar with how sentences get broken that way. That's usually an indication that it was re-worked a few times, and when one does that to "fix a phrase", one runs the risk of breaking the syntax. The word "that" should have come out when it was edited.

In a contract complaint, when you have a contract with an integration clause (a clause to the effect that this document is the full agreement and understanding), you don't go off citing an unidentified "custom" or something that is "widely understood" to handwave at a conclusory statement that the whole contract is null and void.

What is "customary" and "widely understood" as a principle of Contracts 101 is that a signed writing is only required on the part of the party against whom enforcement of the contract is sought. Again, this is not an action seeking to enforce the contract as to DD. This is an action trying to get out from under an arbitration proceeding brought by EC LLC, which most certainly did sign it.

At 22 -

The allegation that Trump didn't sign it is made on "information and belief", which is a hedge against him actually having signed it. Again, while whether he signed it or not is irrelevant to the legal claim posed in the complaint, they actually don't know whether or not he signed it. Hence, the "information and belief" hedge.

Again, the contract allows counterpart signed originals. Whether the copy attached to this complaint has DD's signature, is not probative of whether some other counterpart was or was not signed.