The world is waiting to find out whether a federal district court judge in New York will agree that a 2009 settlement agreement between notorious pedophile Jeffrey Epstein and Virginia Giuffre, one of Epstein’s victims, protects His Royal Highness Prince Andrew, the Duke of York, from the civil suit that Ms. Guiffre has brought against him.
On 1 May 2009, Giuffre (under the name Virginia Roberts) filed a lawsuit against Epstein in the United States District Court for the Southern District of Florida accusing Epstein of sex trafficking of children, sexual exploitation of minor children, and operating a child exploitation enterprise. In her complaint, Giuffre alleged “In addition to being continually exploited to satisfy Defendant’s every sexual whim, Plaintiff was also required to be sexually exploited by Defendant’s adult male peers, including royalty, politicians, academicians, businessmen, and/or other professional and personal acquaintances.” (Emphasis added.). One would consider the addition of the word ‘royalty’ to be an unusual outlier in such a claim, albeit that was before Prince Andrew became to be publicly embroiled in this affair.
On 24 November 2009, Giuffre agreed to dismiss her claims against Epstein in exchange for $500,000, with Giuffre also agreeing not to sue “any other person or entity who could have been included as a potential defendant” from any future federal or state lawsuits. Such wording was included in the settlement agreement filed with the Court which put an end to that suite of litigation.
Flash forward some 10 years and on 9 August 2021, Giuffre filed a lawsuit against Prince Andrew in the United States District Court for the Southern District of New York suing the Duke of York for battery, the intentional infliction of emotional distress in violation of the New York Child Victims Act and New York Penal Law Article 130.
Following some initial jousting between lawyers concerning service, the claim by Guiffre against Prince Andrew appears to have some serious mileage to it, and it has been readily reported that Prince Andrew, royal courtiers and even the Queen herself are concerned about this.
However, the discovery of the 2009 settlement agreement has promoted Prince Andrew and his lawyers to pursue this potential ‘ejector seat’ out of this litigation with Prince Andrew asking (nay perhaps even pleading with)New York Judge Lewis Kaplan, to take judicial notice of the 2009 Agreement, and dismiss Giuffre’s lawsuit on the grounds that she promised not to sue him – as a potential defendant – when she settled with Epstein.
Although it is not possible to predict what any particular judge will do or how they will rule, and there are other issues at play in the Prince’s motion to dismiss, on balance we believe the odds favor the US District Court Judge Lewis Kaplan deciding that the 2009 settlement agreement does NOT prevent Giuffre from suing the Duke of York for damages under New York State law.
WHAT DOES THE 2009 SETTLEMENT AGREEMENT ACTUALLY SAY?
A fast review of the 2009 settlement agreement shows it is a fairly typical settlement contract, notwithstanding the ‘royalty’ inclusion. However, a more detailed review reveals two important aspects of this particular agreement. It contains a “choice of law” clause requiring the New York judge to interpret the Agreement according to “the laws of the State of Florida.” Additionally, there is no “integration clause.” An integration clause prevents a judge from considering evidence – other than the contract itself – to indicate the intent and understanding of the parties. The absence of an integration clause in the 2009 Agreement allows the trial judge to consider other evidence to determine the understanding and intent of the parties – in English law we would call this a lack of an ‘entire agreement’ clause which can be risky business, as it allows other issues to begin to infect what could otherwise be a straightforward and narrow reading of a settlement agreement.
IS PRINCE ANDREW A BENEFICIARY OF THE 2009 AGREEMENT?:
The 2009 Agreement states squarely that it applies to anyone else who could have been named as a party in the Giuffre lawsuit, and her complaint expressly says that Epstein more or less forced her to have sex with “royalty.”
That may well be the case, but it might not make a difference. Giuffre’s attorney argues that Prince Andrew could not have been considered a potential defendant in the Epstein lawsuit because, whereas Prince Andrew had contacts/dealings with New York that allowed New York Courts to assert jurisdiction over Prince Andrew, the same is not true for Florida. Also, Giuffre sued to enforce federal sex trafficking laws that prosecuted Epstein as a sex trafficker; those laws do not apply to the alleged clients of sex traffickers like Prince Andrew.
And there is more. As noted above, the 2009 Agreement does not include an integration clause, which means that Giuffre is free to present evidence showing that the parties did not want to include Prince Andrew as a beneficiary of the 2009, and Giuffre has introduced a 2020 settlement agreement with Epstein’s estate stating that Epstein did NOT intend for the 2009 Agreement to immunise Prince Andrew from future lawsuits that Giuffre might prosecute. That is likely to be the factor which is most terminal to Prince Andrews’ argument – had an integration clause been included in the 2009 settlement agreement, Prince Andrew would have likely been fortified in his argument for relying on the ???
CHOICE OF LAW COMPLICATIONS:
All of this is potentially complicated by the application of Florida law, as the Agreement’s choice-of-law clause dictates. Florida law favors covenants not to sue, and also applies settlement agreements to “groups” that the agreement describes as beneficiaries of the agreement – this is a point in favor of the Prince’s argument, but in our view it may not be enough for the reasons set out above.
CHANGING PUBLIC POLICY:
Added to the maelstrom of consideration is the fact that the United States is in the midst of a legal sea change in reference to contracts like the 2009 Agreement. Prompted by the “Me Too” movement, empowered by the contractual abuses perpetrated by unsavory sexual predators like Roger Ailes at Fox News and Harvey Weinstein – who kept their sexual proclivities secret through nondisclosure/confidentiality agreements between them and their victims – these agreements are facing judicial and legislative disfavor, being viewed as mechanisms by which rich and powerful men are freely able to commit, without consequence, sexual crimes against minors and woman. The 2009 Agreement is, essentially, the same thing – a legal instrument seeking to insulate sexual predators from the consequences of their unlawful predation.
California has enacted legislation expressly prohibiting nondisclosure/confidentiality agreements that prohibit employees from revealing unlawful behavior or actions. There is a truism that, where California leads, the rest of the nation follows.
Each state applies its own choice-of-law rules to decide choice-or-law questions. Courts in New York State are authorised to void any term in a contract, including a choice-of-law provision, when the contractual provision violates a fundamental principle of justice, or a prevalent conception of good morals, as expressed in statute.
Virginia Giuffre is seeking damages against Prince Andrew for violations of New York law that were not at issue in her prior Florida lawsuit against Jeffrey Epstein. Contractual agreements that immunise sexual predators from facing the consequences of their sexual predation are arguably against public policy (and no doubt professors of legal philosophy would argue hugely ethically redundant), violating now-fundamental principle of justice, and a now-prevalent conception of good morals among the People of the State of New York – all of which is embodied in the New York Child Victims Act and New York Penal Law Article 130 – statutes that the New York courts have a strong interest in enforcing.
As stated, there is no way to predict how Judge Kaplan will decide Prince Andrew’s motion to dismiss. Many of the arguments we discuss above were not briefed and, are therefore not before Judge Kaplan – but that does not mean they will not pervade his mind and effect his decision making and thought process. But there is a weight of history, of past injustices permitted, pressing towards a decision that stops paedophiles and sexual predators from using the elegant means of contractual drafting, produced by super intelligent lawyers, to commit barbaric acts without consequence, and the Giuffre/Epstein 2009 settlement agreement is an example of that same elegant barbarism. Prince Andrew is also plagued by the fact that he is probably the ‘biggest fish’ involved in this, so him being made an example of is likely to do at least as much, if not more than any other recent steps taken in respect of the ‘Me Too’ movement.
In our view, Prince Andrew will lose the technical argument before Judge Kaplan and will have to go toe to toe with Ms. Giuffre’s’ claim.
About the authors:
This is a joint article from John Spyrou (LLB Honors – QMUoL), Director and Head of Media at Pinder Reaux Solicitors and Paul Nicholas Boylan Attorney at Law (California Private Practice) former an adjunct Professor of Law at the University of the Pacific, McGeorge School of Law, California, and as an annual visiting Professor of law at the University of Poitiers, France.