NYSBA President’s Arbitration Ruling Marks Decisive Defeat for Trump Administration

NYSBA President’s Arbitration Ruling Marks Decisive Defeat for Trump Administration

9.29.2021

By David Howard King

A three-year legal battle over whether reality TV star Omarosa Manigault Newman violated a non-disclosure agreement with Donald Trump resulted in a decisive defeat for the former president. As a result, the Trump campaign will have to pay Newman’s sizable legal fees.

Newman’s 2018 tell-all about her time in the Trump administration, Unhinged, was the focus of Trump’s complaint, alongside comments she made on television and a recording she shared of a former Trump adviser.

The former president’s campaign sought millions of dollars from Newman for allegedly violating the NDA’s non-disparagement clause. Newman painted a picture of Trump as a mentally deteriorating racist who routinely made lewd comments and emotionally abused his staff.

The arbitrator in the case, T. Andrew Brown, who is also the New York State Bar Association president, found that the NDA was too vague to enforce and that it would have imposed an “unreasonable” obligation on Newman “to never say anything remotely critical of Mr. Trump, his family, or his or family members’ businesses, for the rest of her life.”

Brown declined to be interviewed for this piece.

The ruling could mean several new headaches for Trump, according to Newman’s attorney, John M Philips. “We’ve won in Donald Trump and the Trump Campaign’s chosen forum, ” Phillips told Law & Crime. “They now owe attorney’s fees. Whether the campaign tries to bankrupt out of this ruling, or it energizes more people to come forward and blow the whistle on corrupt government, it’s a win we can all be proud of. People who signed these NDAs should sleep better and speak more freely.”

A spokesperson for the Trump campaign issued this statement to CNN: “Nobody in her life has done more for Omarosa than a man named Donald Trump,” he said. “Unfortunately, like certain others, she forgot all about that — which is fine with me!”

Brown determined that the NDA’s confidentiality provisions “fail as vague and indefinite.”

“The New York Court of Appeals has held that in order for a contract to be formed, the terms that are agreed to must be clear and definite; if they are not, there is no binding contract,” Brown wrote in a decision shared by Newman’s attorney.

Brown’s ruling also notes that due to the vagueness inherent in the NDA there was no way for Newman to know whether she was violating it. “There is no way here to tell if a breach has occurred, since the determination of whether there is a breach is left to the sole determination of Mr. Trump,” wrote Brown.

Philips said that the Trump campaign’s “use of lawsuits as a weapon” and attempts to prevent Newman from exercising her right to political speech under the First Amendment brought up clear ethical issues that moved him to take the case.

While arbitration decisions do not establish a precedent, there are other cases concerning similar NDAs signed with the Trump administration that might be influenced by Brown’s decision.

Several former advisers and associates from the Trump administration have already penned damaging tell-alls, but this ruling could embolden more former advisers who signed similar agreements.

Phillips told NYSBA that he expects the decision will lead others in Trump’s circle to come forward with damaging information due to the similarity of NDAs Trump has used throughout his career.

“I did have the benefit of reviewing other NDAs from people who stood up previously and they are identical,” said Phillips. “There was a second attempt at the White House with NDAs that are substantially similar and then there was one that Omarosa was presented with after that was better but similar. There are hundreds of these out there and while it might not be an opening of the floodgates, I do think it will free up some people to speak their mind.”

Newman’s attorneys have until Oct. 12 to submit documentation about her legal fees. Trump’s lawyers have until Oct. 24 to submit a response.

Phillips says that he does not know how much in attorney’s fees his client will seek to recoup “to the penny” but it would likely be “over one million dollars.” He noted that Trump’s campaign lawyer, Charles Harder, has billed the campaign for $3.8 million for this case.

The decision, which was made available by Newman’s attorney, can be found here: 

Newman Decision