Thread by @TheViewFromLL2

Best guess of what's going on here: @MichaelCohen212 went to JAMS -- the arbitration service specified in the Hush Agreement -- and received an emergency ex parte preliminary injunction on Stormy.

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by @kaitlancollins view original on Twitter

Stormy says as much in the complaint she filed yesterday. She also alleges it was an "improper and procedurally defective arbitration proceeding," though she does not exactly specify the basis for this claim.

And although a bit oblique in wording, Stormy's complaint also hints at some kind of order having already been issued against her by the arbitrator.

The text of the Hush Agreement between Trump and Stormy actually provides for this sort of maneuver, and permits "DD" to obtain a restraining order on Stormy (1) without notifying Stormy in advance of the request, and (2) without Stormy's presence or involvement at the hearing.

So putting all this together, when @PressSec says the arbitration has "already been won," and Stormy says "Cohen surreptitiously initiated [arbitration] w/o even providing [Stormy] notice of the proceeding & basic due process," they're referring to some ex parte order from JAMS.

But here's what's still unclear to me: who are the parties in the arbitration proceeding that Cohen initiated? Which individual or legal entity actually initiated this arbitration against Stormy? It does not appear to have been President Donald J. Trump.

Stormy's complaint says it was "Mr. Trump's attorney Mr. Cohen" who initiated the arbitration against her, but in what capacity did Cohen do so? As attorney for Trump? As attorney for "EC, LLC and/or David Dennison"? Or as the claimant in his own name?

It's unclear how much Stormy knows about the restraining order against her, since it was issued ex parte and w/o notice, but it seems that she has yet to see anything confirming Trump's direct involvement: "The extent of Trump's involvement in these efforts is presently unknown."

So most likely it was Essential Consultants LLC, through its attorney Michael Cohen, that filed the arbitration.

This is presumably part of Cohen's "clever" strategy to shield Trump by pretending that Trump was never actually a party to the Hush Agreement with Stormy.

Maybe it's how things are done in Hollywood, but the Hush Agreement is bizarre to me – the phrase "too cute by half" comes to mind.

There's only one possible purpose for drafting it this way: to allow Trump to enter into an agreement that he can never be proven to have entered.

The result is a contract that feels less like a contract, and more like a legal version of some kind of bullshit Ship of Theseus thought experiment. Who are "the parties" to this contract? What does it even mean to be "a party"? Does one have to know who one is contracting with?

Stormy is for sure one party. But who is the other?

Is the agreement between Stormy & Trump? Or is it a 3-party agreement between Stormy, Trump and EC LLC? Or was it drafted as a 3-party agreement, but when only Stormy and EC LLC signed, it transformed into a 2-party agreement?

It's almost not worth thinking too hard on, because the real answer is this gobbledygook contract was intentionally drafted to be confusing and misleading, and to give Trump enough flexibility to claim the benefit of every doubt.

So in trying to divine the true meaning of the Hush Agreement, there can be no "right" answer. But the approach in Stormy's complaint makes sense to me, because at the end of the day, based on the copies Stormy has, Trump simply hasn't entered into any agreement here.

The contract has sig lines for 3 parties: David Dennison (a.k.a. Trump), Peggy Peterson (a.k.a. Stormy), and Essential Consultants LLC (a.k.a. Cohen's Delaware entity payment vehicle).

Stormy signed. And Cohen signed as the authorized rep for EC LLC. But no one signed for Trump.

And no, Trump's attorney did not sign on his behalf. Check the page where the parties' attys signed.

"Keith Davidson, attorney for PP" a.k.a. Stormy signed. And "Michael D. Cohen, attorney for Essential Consultants, LLC" signed.

But "__________, attorney for DD" did not sign.

(Incidentally, I think the blacked out part on Cohen's sig block says "RCI", which may be Resolution Consultants, the initial entity Cohen formed. There's an earlier draft of the side letter Stormy gave to Slate, and it has "RCI" instead of EC LLC as the name of the company.)

What's more of a toss-up here is how a tribunal is going to interpret the role of EC LLC in all this.

Is EC a 3rd party with standing to enforce? Is EC just a pseudonym for Trump? You can pick out bits of the contract that could support either reading, there's no real answer.

At least not yet. If I'm right, and if it's Essential Consultants, LLC, through its attorney Michael Cohen, that initiated arbitration against Stormy and got the ex parte RO, the arbitrator is going to have to figure out if Stormy really had a contract directly with EC LLC.

But Stormy's lawsuit in CA state court names Trump specifically. So perhaps he'll try to dismiss the suit and claim it ought to be decided in the (arbitration) forum he and Stormy agreed to – but to try that, he'll have to first prove that he and Stormy had an agreement together.

All right, here we go: more details on the RO are now available.

And... surprise surprise, Trump is NOT a party to the arbitration. nbcnews.com/news/us-news/t…

What is surprising, though, is that it seems it was Michael Cohen himself, acting in his own name, who initiated arbitration against Stormy?

Sure, okay, why not. I have no idea how any of this could possibly work, because Cohen is for sure not a party to the Hush Agreement.

Stormy receiving (and accepting) the $130K very likely could affect the legal analysis here.

Problem is, to say what kind of effect it might have, we'd first have to know who actually made the payment, and where the money came from. Right now we don't.

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by @Delavegalaw view original on Twitter

And remember, the $130K is also only part of the consideration under the contract. Stormy also received releases that only Trump could provide -- EC LLC does not have the ability to bargain with Stormy for that. You can't just replace Trump with EC LLC and call it close enough.

Here's a copy of the TRO: viewfromll2.files.wordpress.com/2018/03/arbitr…

It's with ADR, not JAMS. And it was indeed "EC LLC" that brought the arbitration. Presumably that's intended as an alias for Essential Consultants, LLC, since EC LLC doesn't actually exist.