Speaker 1: What's up, everyone, and welcome back to the program. We're
gonna pick right back up where we left off with
the Virginia Roberts and Prince Andrew opinion by Judge Kaplan.
So let's get right back to it. Two. Whether defendant
is entitled to enforce the release as a third party
beneficiary of the two thousand and nine agreement. As very
general matter, the only persons who can enforce a provision
of a contract are parties to that contract, the people
who agreed to it. The defendant was not a party
to the agreement between Epstein and miss Joffrey. Accordingly, even
if the releasing language in the two thousand and nine
agreement included the defendant among the persons Miss Joffrey released,
the question would remain whether the defendant may take advantage
of that release under Florida law. That depends on whether
mister Epstein and Miss Jeoffrey intended that he be able
to do so. In other words, whether he was what
the law calls a third party beneficiary of the contract.
Under Florida law, it is essential to the right of
a third party beneficiary to enforce the contract to which
he or she is not a party That the clear
intent and purpose of the contract was to directly and
substantially benefit the third party. A merely incidental consequential third
party beneficiary of a contract may not sue for its
enforcement a relevant provisions of the agreement. In this case,
there are substantial indications on the face of the two
thousand and nine agreement itself that Epstein and Miss Joffrey
did not clearly intend for the releasing language with respect
to other potential defendants in the Florida case, whatever that
was intended to mean to directly, primarily or substantially benefit
those persons as an initial matter, one reasonably might conclude,
although that may not be the only permissible infairmarance for
reasons already stated that Epstein's purpose in seeking to obtain
a release of persons other than Epstein and the other
second parties was primarily and directly to protect himself from
becoming embroiled in future litigation. That goal, even assuming that
the requirements of clear intention to benefit the persons released
primarily and substantially were satisfied, which is doubtful, would have
been served only if persons arguably within the releasing language
were aware of it, and if later suit by Miss
Joffrey successfully could have asserted the two thousand and nine
agreement release against her. But the two thousand and nine
agreement contains provisions that appear to have been intended to
make sure that such persons would not be aware of
the release, and, even if aware of it, were prohibited
from or at least severely limited in their ability to
use it defensively. First Section four, the Confidentiality Clause provide guides,
in pertinent part, that the party shall not provide any copy,
in whole or in part, or in any form, of
this settlement Agreement to any third party, except to the
extent required by law or rule, or in response to
a validly issued subpoena from a government or regulatory agency. Moreover,
neither this settlement Agreement, nor any copy hereof, nor the
terms hereof, shall be used or disclosed in any court, arbitration,
or other legal proceeding, except to enforce the provisions of
this settlement Agreement. So both Epstein and Miss Joffrey were
prohibited from providing all or part of the two thousand
and nine agreement, even to anyone who might have been
among the persons possibly included within its releasing language. The
second is a portion of section two, the release provision,
that provides, additionally, as a material consideration in settling first parties,
Miss Joffrey and second party Epstein agree that the term
of this settlement agreement are not intended to be used
by any other person, nor be admissible in any proceeding
or case against or involving Jeffrey Epstein, either civil or criminal.
Taken together, these provisions at least reasonably could be interpreted
as meaning that Epstein and Miss Joffrey agreed that one
neither would disclose the two thousand and nine agreement in
whole or in part to anyone, except upon compulsion of
legal process, and two, no one was intended to use
the terms of the two thousand and nine agreement, which
of course included the release language upon which the defendant
relies in any preceding or case involving Jeffrey Epstein. B
defendants cases are in opposite. Defendant nevertheless contends that Florida
courts have long recognized that an intended third party beneficiary
of a broad release has standing to enforce that release,
even when the release does not identif ui FI the
third party by name. That is, at least an unduly
broad generalization. The first case, he sites Ulsen versus O'Connell,
held that purchasers of real property were third party beneficiaries
of a contract between two sellers of that property and
holders of an existing judgment lean on it. There However,
the court indicated that the agreement existed only as the
necessary part of the impending sale of the property to
the third party buyers. The sellers had sought the agreement
only because they could not consummate the sale of the
property without obtaining a release of the judgment lean. They
made the deal with the judgment creditor in order to
affect the sale to the buyers. The buyers. The unnamed
third parties were so integral to the deal between the
sellers and the judgment creditor that the court hypothesized that
they were likely even actual parties to the agreement, as
evidenced by their execution of the note and more mortgage
payable to sellers, and their closing of the sale in
reliance upon the agreement. This case bears no resemblance to Olsen.
The defendant points next to Hester versus Gatlin and Dean
versus Bennett m Lifier Incorporated, both of which involved auto
accidents with multiple potential tortu feezers. In Hester, the owner
of a car involved in a multi car accident was
held to be a third party beneficiary of a release
agreement that had been executed between the plaintiff in that
case and other drivers who were involved in the accident.
They're the release language extended to any and all other
persons and door corporations who are or may be liable
for injuries or damages sustained as a result of the
subject accident. And in Dean, a court held that the
employer of a driver who caused a fatal car accident
was a third party beneficiary to a settlement agreement between
the driver's insurance company and the admit administration of the
victim's estate. The settlement there included general language releasing any
other person, corporation, association, or partnership charge with responsibility for
injuries to the person and property of the undersigned and
the consequences flowing therefrom as a result of the fatal accident.
As Miss Joffrey observes in her brief, the Hester and
Dean releases were confined to discrete events on a specific day,
identifiable subject accidents circumscribing narrowly the subject matter of the
purportedly released persons or claims, so they too are in
opposite here, and there is further problems common to all
defendants cases. None of the cases that defendant sites dismiss
claims against a defendant putative third party beneficiary who asserted
or released defensively at the motion to dismiss stage. Prince
Andrew's view of other potential defendants, on the other hand,
seeks to confer rights on unnamed third parties that would
be orders of magnitude broader than those contemplated in any
of the Florida cases that have been brought to this
Court's attention. Moreover, whichever way these comparisons break, they matter
little on the facts of this case. The ultimate goal
in any case involving a contract is to determine and
give effect to the intention of the contracting parties. Unlike
the cases cited by the defendant, where the party's intentions
were perfectly plain at least by the time the cases
were decided, the intentions of Miss Joffrey and Epstein concerning
the release are anything but clear here, at least at
this stage. The cases upon which defendant relies are of
no assistance in determining those intentions see the Derschwitz argument. Finally,
the defendant nevertheless argues that his interpretation of the other
potential defendant's clause is the only reasonable one on the
basis of a led defense. Relating to Alan Dershowitz, a
lawyer and retired law professor whom Miss Joffrey has sued
in another case, defendant asserts that Miss Joffrey dismissed her
claims against Professor Dershowitz when this release was raised to
her as a potential defense. This, according to Prince Andrew,
proves that the two thousand and nine agreement released mister
Dershowitz and, by parody of reasoning, the defendant in this case,
the theory apparently being that both were other potential defendants
in the Florida case. During oral argument, the court questioned
that argument based on its suggestion that mister Dershowitz was
covered by the release in the two thousand and nine
agreement because he has been one of the Epstein attorneys
and therefore was among the second parties. In other words,
that he was covered by the release independent of whether
he was another potential defendant, as the defendant now claims
that he is, and on further reflection and an ans analysis. However,
the suggestion that mister Dershowitz was covered because he was
one of the second parties was not necessarily correct. A
release has three essential elements. One one who gives a release,
usually referred to as a releaser. Two one against whom
the releaser gives up or surrenders something such as a person,
usually being referred to as a release he. And three
a description of what is being released, which may be
general eg. All claims whatever that the releaser has or
may have against the release hee, or specific eg. A
releaser's claim for damages caused by the releaser's motor vehicle.
In section two, the category of releaser is plain enough
the first parties. There also is a description of the
releasees one the second parties, and two any other person
or entity who could have been included as a potential
defendant other potential defendants. The problem, however, is that the
claim against the second parties other than Epstein that purportedly
were released Specifically, Section two says that claims released were
claims that the first parties ever had or may have
against Epstein or other potential defendants for upon or by
reason of any matter, cause, or thing whatsoever. Strikingly, it
does not say the first party is released the second
parties other than Epstein personally as such from any particular
claims at all, whether all claims or some specific claims. Accordingly,
element three of the essential elements of a release, the
specification of what claims against the second party were being
released is missing. As to the second parties, Accordingly, it
would be reasonable, indeed arguably unambiguously clear, that the two
thousand and nine agreement did not release any claims against
second parties except for one Epstein himself, and two those
second parties other than Epstein, who, in addition to being
second parties, came within the definition of other potential defendants.
Whatever that is to be sure, it might be argued
that Section two should be read as a broad release
of all claims that first parties had or may have
against all of the second parties, notwithstanding its failure to
say that. But that alternative interpretation cannot be the only
reasonable view of the meaning. Accordingly, the meaning, and indeed
as to the second parties as such other than Epstein.
The validity of the release cannot be decided on this motion.
The difficulty the problem presents, however, is relevant to the
extent that demonstrates yet again that the two thousand and
nine agreement, whatever it was intended to mean, is riddled
with drafting problems and ambiguities. All right, folks, we're going
to wrap up Part three here, and in the next
episode we're going to pick up with Part four. All
of the information that goes with this episode can be
found in the description box. What's up, everyone, and welcome
back to the Epstein Chronicles. In this episode, we're gonna
pick up where we left off with the opinion of
Judge Caplan when it comes to the lawsuit between Virginia
Roberts and Prince Andrew. So let's just get right back
to it, shall we. The two thousand and nine agreement
cannot be said to demonstrate clearly and unambiguously that the
parties intended the instrument directly, primarily or substantially to benefit
Prince Andrew. The existence of the requisite intent to benefit
him or others comparable to him is an issue of
fact that could not properly be decided on this notion,
even if defendant fell within the releasing language, which itself
is ambiguous. Thus, independent of whether the release language applies
to Prince Andrew, the agreement at a minimum is reasonably
susceptible to more than one interpretation on the equally important
question of whether this defendant may invoke it. As a
matter of Florida law, this Court cannot rewrite the two
thousand and nine agreement to give the defendant rights where
the agreement does not clearly manifest an intent to create them. Two,
the complaint states legally sufficient claims. Miss Joffrey's complaint asserts
two causes of action. Both are state law toward claims,
the first for battery and the second for intentional infliction
of emotional distress. Defendant moves to dismiss both on the
theory that plaintiff has not alleged adequately any violation of
the New York Penal Code. A legal principles. To survive
a motion to dismiss under Rule twelve B six, a
complaint muscle edge facts sufficient to state a claim to
relief that is plausible on its face. The standard is
met where the pleded factual content, which on this motion
must be assumed to be true, permits a reasonable inference
that the defendant is liable for the misconduct alleged. A
complaint need not anticipate potential affirmative defenses or affirmatively plead
facts and avoidance of such defenses, as is the case
with defendant's arguments predicated on the two thousand and nine agreement.
The court may not dismiss on an affirmative defense unless
the defense appears on the face of the complaint. B
analysis one the complaint is legally sufficient. Plaintiff's complaint plainly
alleges prima facie cases of battery and iied under New
York law. Indeed, defendant does not directly contest whether plaintiff's
allegations satisfy those elements of those causes of action. The
allegation that plaintiff was forced to sit on defendant's lab
while he touched her is sufficient to state a battery
claim under New York law, regardless of which part of
her body defendant ultimately is alleged to have touched. To
state such a claim, a plaintiff need allege only that
there was bodily contact, that the contact was offensive, and
that the defendant intended to make the contact without the
plaintiff's consent. Contact is offensive if it was wrongful under
all the circumstances, which certainly is a reasonable inference from
Miss Joffrey's allegations. The only intent required is an intent
to cause a bodily contact that a reasonable person would
find offensive. Any intentional touching affected for the purpose of
satisfying one sexual desires, or made with knowledge that plaintiff
was a sex trafficking victim being forced to engage in
sexual acts with them would permit a reasonable person to
find that the alleged contact was inappropriate in all of
the circumstances, to say nothing of the allegedly forced acts
of sexual intercourse. The sufficiency of plaintiffs miied claim is
similarly apparent. To state anied claim under New York law,
a plaintiff must allege one extreme and outrageous conduct, two
intent to cause or reckless disregard of a substantial probability
of causing severe emotional distress, three a causal connection between
the conduct and the injury, and four severe emotional distress.
Defendant does not challenge the complaint sufficiency as to any
of these elements. Plaintiff has alleged severe emotional distress. She
alleges that it was a direct and proximate result of
Prince Andrew's criminal acts. She asserts that he knew or
disregarded the substantial likelihood that his actions would cause plaintiff
severe emotional distress. And although she so alleges in her complaint,
it should go without saying that the alleged conduct, if
it occurred reasonably, could be found to have gone beyond
all possible bounds of decency and is intolerable in a
civilized community. Sec. Two. Defendant's contention that the plaintiff was
obliged to plete specific facts demonstrating violations of the New
York Penal Law is incorrect. Abandoning reference to the causes
of action in the complaint, Defendant seeks dismissal on the
grounds that plaintiff has not adequately alleged the violation of
the New York Penal Code. He insists that plaintiff is
required to allege conduct which would constitute a sexual offense
as defined in an article one hundred and thirty of
the Penal Law. The argument relies heavily on the observation
that plaintiff's claims would be time barred but for New
York Child Victims Act, the CVA, which revived child abuse
claims tied to an alleged violation of New York criminal law.
Defendant's view of the pleading standard is at odds with
the Federal Rules of Civil Procedure. Rule eight requires only
a short and plain statement of the claim showing that
the pleader is entitled to release. On the theory asserted here,
the CVA does not create plaintiff's cause of action. She
is required only to plead facts efficient to allege battery
and iied. Whether any of the alleged conduct rose to
a violation of New York penal law goes only to
the question whether Miss Joffrey's claims or time barred, that is,
to an affirmative defense. When defendant asserts such a defense,
it will be his burden to establish that the claims
are untimely. Whatever hurdles the CVA ultimately requires plaintiff to
clear to defeat a statute of limitations defense are not relevant.
On this motion. Three plaintiffs iied and battery claims are
not duplicative. The defendant argues next that Miss Jeoffrey's ied
claim should be dismissed as duplicative of her battery claim.
He says this is so because, under well established New
York law, claims are duplicative when both arise from the
same facts and ce the identical damages for each alleged breach.
But Miss Jeoffrey's claims do neither. Defendant's motion misunderstands the
two causes of action. Plaintiffs iied claim arises at least
in part from alleged conduct that forms no element of
her battery claim. Miss Joffrey alleges, among other potentially distinguishing conduct,
that the defendant caused her to witness the abuse of
another victim. That allegation thus alleges injury flowing from different
conduct than the alleged non consensual physical contact. As a
claim is not duplicative where a plaintiff has set forward
substantiating conduct that differs from other causes of action, her
iied claim is not duplicative of her battery claim, regardless
of what share of her injuries, if any, is due
to battery committed against her person. Her miied claim therefore
must be permitted at this stage to proceed because she
has allegedly potentially tortious conduct in addition to battery. Moreover,
the defendant admitted during an oral argument the single satisfaction
rule would foreclose plaintiff from recovering more than once for
any given harm. More substantially, the two claims do not
seek identical relief. Even though plaintiff seeks damages on each claim,
her requested relief does not entirely overlap. To be sure,
Miss Jeoffrey asserts that the alleged battery caused some measure
of extreme emotional distress and psychological trauma. But when drawing
all inferences in Plaintiff's favor, the complaint pleads facts sufficient
to allow a reasonable jury to return a damage's award
on emotional distress that is over and above what it
might award on battery. As it stands, any risk of
duplicative recovery may be resolved by jury instructions. It is
for these reasons that battery and iied claims routinely precede
in tandem under New York Law three. The attack on
the constitutionality of the New York Child Victims Act is
without merit. The final ground on which defendant moves to
dismiss the complaint is that the CVA claim revival provision.
In other words, the limited extension of the statute of
limitations for civil claims by child victims of sexual abuse
is unconstitutional. Specifically, he argues that the New York State
legislature violated the due process clause of the New York
Constitution when it temporarily revived child sex abuse claims that
otherwise would have been too late. Defendant is not the
first litigant to advance this argument, which has been rejected
by every New York State and federal court to have
encountered it, and it has been rejected repeatedly for good reason.
Drawing primarily on New York cases from the nineteen twenties
and fifties, Defendant urges the nearly one hundred years of
precedent make clear that claim revival is permitted only when
there is an injustice of a type that makes a
plaintiff legally unable to sue, whatever the historical practice may
have been. The New York City Court of Appeals recently
made clear that the test for whether a claim of
revival statute runs a foul of the New York due
process clause is simply whether the revival statute is a
reasonable measure to address an injustice. The cva's limited claim
revival window was a reasonable measure to address an injustice
as well, within bounds of the new legal standard articulated
shortly before its passage. As another judge of this Court
recently concluded with respect to Miss Joffrey's pending action against
mister Dershowitz, New York Court's historical skepticism of claim revival
provisions appears to be just that historical claims for sexual
abuse plaintiffs who have reached adulthood within the applicable three
year statute of limitations. His argument fundamentally is that enforcing
the usual statute of limitations to bar claims of child
sex abuse causes no injustice where those who wished to
sue were not barred from doing so solely because they
were miners, in other words, where the victims became adults
at a time when they could have brought suit before
the statute of limitations period expired. The Court of Appeals, however,
has made clear also that in the context of a
claim revival statute, there is no principled way for a
court to test whether a particular injustice is serious or
whether a particular class of plaintiffs is blameless. Such moral
determinations are left to the elected branches of government. As
Miss Geoffrey notes in our opposition, a range of legislative
judgments undergird the provisions patent constitutionality, both on its face
and as applied to her claims. These include New York's
comparatively restrictive limitations period for sexual abuse claims, improved understanding
of victims, barriers to coming forward with those claims, and
the eminent threat that abuser posed to public safety. Each
of these is capable of insulating both the initial one
year revival window and its subsequent extension from a New
York Due process clause challenge, to say nothing of the
latter's measure relationship to ensuring access to justice during a
global pandemic. Defendant's most discernible objection is that the legislature
hastily passed legislation to amend the CVA by doubling the
claim revival period from one year to two. He contends
that the legislature's one year extension was not a reasonable
response in light of the Governor's near contemporaneous executive order
extending the filing window by five months on account of
COVID nineteen. He argues also that there is no indication
that the New York Court of Appeals ever, has approved
of a legislature's extension of the deadline for filing time
barred claims in the middle of the original claim revival period,
with or without a global pandemic. New York's model two
year revival window was a reasonable measure for remedying injustice
to victims without treading upon the state's constitution due process clause.
Not only was it reasonable, it was modest compared to
the claim revival measures adopted by other state legislatures in
the child abuse context. Numerous states have opened to revival
windows that were two years or longer from their inception,
some of which were later extended for additional multi year periods.
Other jurisdictions have enacted in definite claim revival windows, and
in some states that have adopted an age based approach,
MS Joffrey's claims would have remained timely for at least
another decade. Certainly, each of those revival statutes was passed
against the enacting state's unique constitutional backdrop, but each is
relevant to show that the measures here selected by New
York legislature were among the most tailored and the most
mindful of the due process concerns defend and emphasizes in
his motion, it is difficult to imagine more narrower measures
capable of addressing the injustices animating the CVA. Indeed, our
attention has not been called to any state or territory
that ever has adopted a sexual abuse claim revival window
shorter than one year. Defendant's observation that the CVA revived
claims for those who suffered harm as a result of
sexual battery when they were under age of eighteen when
the New York age of consent for other purposes now
is seventeen, does not bear on the cva's constitutionality. There
are many ways a plaintiff may establish that a sexual
act was committed without his or her consent. Such acts
also may be non consensual on more than one legal theory.
True lack of consent is established as a matter of
law for individuals who are under the age of seventeen
at the time of the offense, But the fact says
nothing of the reasonableness of reviving claims of others who
were over seventeen but less than eighteen when they were abused.
Lack of consent in such cases can be established by
at least physical force or actual or implied threats. Contrary
to his assertion, defendant's concerns over false memories and other
evidentiary matters are not always greater in cases in which
the alleged victim claims that he or she acquiesced as
a result of such duress. Even where a claimant can
establish lack of consent as a matter of law, other evidence,
including subjective evidence, often is required to prove the conduct
that actually occurred. Defendant's far reaching speculation about what evidence
will or will not be relevant to the issue of consent,
both in this case and in others like It is
no basis for distinguishing between claims brought by victims who
were under seventeen and those who were under eighteen. The
cva's creation of an arrow window for allowing previously time
barred child sex abuse claims to proceed is neither more
nor less reasonable for having set the upper age limit
for those who benefit from the window at age eighteen,
rather than setting it at the legal age of consent seventeen.
Lacking persuasive legal authority which to question the CBA's constitutionality.
Defendant's motion falls back onto doctrinal anachronism and in opposite
authority on claim revival at common law. Accordingly, as another
court in our circuit has put it, While his argument
regarding unconstitutionality is creative, it is without merit. Part four.
Defendant is not entitled to a more definite statement. He
will get the detail he seeks during discovery. Defendant's alternative
motion for a more definitive statement is similarly meritless, as
defendant correctly observes, Rule twelve V affords relief where the
complaint is so vague or ambiguous that the defendant cannot
reasonably prepare a response. That rule, however, entitles movements to
a more definite statement only when their complaint is so
vague or ambiguous as to be unintelligible. Miss Jeffrey's complaint
is neither unintelligible, nor vague nor ambiguous. It alleges discrete
incidents of sexual abuse in particular circumstances at three identifiable locations.
It identifies to whom it attributes that sexual abuse. Defendant
nevertheless holds out that he cannot reasonably prepare a response
because plaintiff has not described what purported sexual contact occurred,
when and where the incident occurred, or the forcible compulsion
she was under due to express or implied threat to
the degree of specificity that he would like. While he
understandably seeks more detail about the precise details of Plaintiff's claims,
he will be able to obtain the detail during pre
child discovery. Moreover, Defendant's assertion that he cannot reasonably prepare
a response to plaintiff's allegations mainly contradicts the contents of
his moving papers, in which he denies Miss Jeoffrey's allegation
in no uncertain terms conclusion. For the foregoing reasons, Defendant's
motion to dismiss the complaint or for a more definite
statement is denied in all respects, given the court's limited
task of ruling on this motion, Nothing in this opinion
or previously in these proceedings properly may be construed as
indicating a view with respects to the truth of the
charges or counter charges, or as to the intention of
the parties in entering into a two thousand and nine agreement.
So ordered by Judge Caplan and dated January eleventh, twenty
twenty two. All right, so that's going to wrap up
our look at Judge Caplan's opinion here, and we're going
to keep it moving. We're going to keep going through
all of these core documents now that we're at a
point where you know, it's slowed down a bit when
it comes to Ebstein news in general. But these core documents,
they are with all sorts of information that I know
that all of you out there who are following this
case are going to find not only interesting, but in
many cases jaw dropping. So we're going to keep going
through them. The next one we're going to look at
is Jeffrey Epstein's will and testament. All of the information
that goes with this episode can be found in the
description box.