Judge Lets Bill Cosby Sue Rape Accuser, But Not for Talking to Law Enforcement

Cosby can move forward on a claim that Andrea Constand breached confidentiality in tweets and in a press interview.
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On Monday, Bill Cosby got a mixed ruling in his civil lawsuit against former Temple University employee Andrea Constand and her attorneys. A Pennsylvania federal judge has thrown out one key claim the embattled entertainer has made, but allowed others to move forward. Additionally, Cosby is being allowed to sue the parent company of National Enquirer.

Constand is the woman whose rape allegations have Cosby facing a pending criminal proceeding in the state. After the District Attorney brought charges this past December against Cosby over a sexual abuse alleged to have happened back in 2004, Cosby returned fire with a civil lawsuit against Costand, her mother, her attorneys Delores Troiani and Bebe Kivitz, as well as American Media for allegedly breaching the confidentiality provision of a 2006 settlement agreement.

In a ruling today, U.S. District Judge Eduardo Robreno has granted a motion to dismiss as it pertains to Constand, her mother and her lawyers talking to law enforcement.

Although the settlement agreement prohibited Constand and her reps from disclosing any aspect of her prior litigation against Cosby, the judge agrees with Troiani and Kivitz that such confidentiality is unenforceable because it violates public policy by purporting to prevent individuals from providing information concerning alleged criminal conduct.

Cosby argued from a reading of prior cases that public policy only prevented disclosures elicited through a subpoena, but Robreno rules that Cosby hasn't cited any support for the proposition that parties can be bound against voluntary disclosures to law enforcement officers.

As such, Cosby loses that aspect of his breach-of-contract claim, but he experiences better luck on how Constand's lawyers allegedly violated confidentiality by participating in the release of Cosby's decade-old deposition —the now infamous one where he admitted giving women drugs for the purpose of sex.

Troiani and Kivitz contended that they played no role in the release of the deposition transcript and that the court reporting service that leaked the transcript wasn't their vendor. But the judge says these are factual issues that can't be resolved at this preliminary stage.

Additionally, the judge declines to reject a claim directed at Constand over two 2014 tweets and an interview with the Toronto Sun. In one tweet, Constand wrote, "I won't go away, there is a lot more I will say," and in the other, she wrote, "It's not that everybody just forgot about it, truth is nobody cared."

Constand argued that the tweets couldn't form the basis of a breach of contract because she didn't name Cosby. 

"This argument is unavailing because, of course, a statement can be a reference to an individual or situation even if it does not explicitly say so," writes the judge. "Whether the tweets were in fact references to Cosby  and, if so, whether Constand breached the CSA by tweeting them  are questions to be answered at a later stage."

The woman accusing Cosby of rape also fails at the initial stage in making the argument that Cosby's own unclean hands in talking to the press prevents his claim. As Cosby has an unjust enrichment claim against her, she faces the possibility of having to give Cosby back the monetary proceeds of the settlement. Meanwhile, American Media — which was part of the decade-old Constand lawsuit over what it reported in National Enquirer — must also face Cosby's wrath over articles it more recently published on Constand's allegations and Cosby's deposition. The judge find that what's public is another question of fact that can't yet be resolved.

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