Trump Campaign Staffer's "Unduly Burdensome" NDA Unenforceable

Donald Trump addresses the Conservative Political Action Conference
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The Donald Trump Campaign can't stop a former staffer from disparaging the former president, or his entire family, or any of their businesses, a New York federal judge on Tuesday ruled.

Jessica Denson, who worked as a national phone bank administrator from August to November 2016, has been in multiple disputes with the Trump campaign in open court and arbitration. They center on the employment agreement she and other campaign workers were forced to sign — one that contained both non-disclosure and non-disparagement provisions concerning all Trump family members and their businesses — and whether it's is void and unenforceable.

The battle began in Nov. 2017 when Denson sued the campaign for sex discrimination, harassment and slander and it responded by filing an arbitration claim that she violated the non-disparagement clause by suing. A New York judge denied the campaign's motion to compel arbitration, and Denson sued in federal court challenging the legality of the agreement. That matter was compelled to arbitration, which the campaign had started in 2017 without "meaningful" participation from Denson.

An arbitrator found Denson breached her contract by publishing confidential information in her lawsuit and making disparaging statements on Twitter and GoFundMe — and in December 2018 issued an award of just over $49,500 against Denison. The state court confirmed the award, but it was reversed on appeal and vacated in its entirety.

Then Denson submitted a class-arbitration demand to the campaign and it responded by telling her if she “wants to proceed with a class action lawsuit, she must file her purported claims in court."

U.S. District Judge Paul G. Gardephe notes that the campaign has also brought arbitration claims against three other workers, including The Apprentice contestant Omarosa Manigault Newman and Cliff Simms in connection with their books and another staffer who sued over unequal pay based on gender and race.

In the matter at hand, the campaign filed a motion to dismiss arguing that Denson lacked standing to sue and the court had already reached the issue of enforceability; and Denson filed a motion for summary judgment arguing that the contract violates her freedom of speech. The court denied the dismissal and granted Denson's motion for summary judgment.

"Denson is not relying on a hypothetical risk of enforcement of the Employment Agreement’s non-disclosure and non-disparagement provisions, or even a single past instance of enforcement," writes Gardephe. "Rather, she has pled facts and proffered evidence demonstrating a pattern of conduct on the Campaign’s part, in which the Employment Agreement’s non-disclosure and non-disparagement provisions have been enforced both against Denson and against other former Campaign employees. This pattern of conduct plainly demonstrates that there is a substantial risk of a future action if Denson or other Campaign employees speak in a way that the Campaign believes violates the Employment Agreement."

Gardephe found the scope of the non-disclosure agreement to effectively be unlimited. It includes 35 categories of information (like "personal life" and "political and business affairs") and applies to more than 500 companies that Trump is affiliated with, not counting others that may be tied to one of his family members (including "unnamed spouses, children, and grandchildren").

"The non-disclosure provision’s vague, overbroad, and undefined terms also render it unduly burdensome," writes Gardephe. "It is difficult if not impossible for Denson or another Campaign employee to know whether any speech might be covered by one of the broad categories of restricted information; whether that speech might relate to one of the several hundred potential subjects of the non-disclosure provision; or whether that speech may relate to a matter that President Trump will determine is confidential. Because the effect of these burdens is to chill the speech of Denson and other former Campaign workers about matters of public interest, the non-disclosure provision is harmful not only to them but also to the general public."

In short: it's "impossible for Denson to know what speech she has agreed to forego, and there is no possibility of mutual assent."

Gardephe found the non-disparagement provision to be unenforceable with a similarly "enormous scope" and directed the parties to file a joint letter on how they want to proceed in light of the opinion, which is posted below.