It's black-letter law (in all circuits) that “challenges to the existence of a contract as a whole must be determined by the court prior to ordering arbitration.” Sanford v. MemberWorks, 483 F.3d 956 (CA9 2007). Seems like there's a legitimate formation issue on the table.
I fear that we will never know the answer because this will be resolved in the arbitration. A lot depends on how the federal court moves nexthttps://twitter.com/nycsouthpaw/status/982018352091672576 …
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Here's an excerpt from a brief that I filed on this issue in the Ninth Circuit. Cohen/EC's motion invokes the Supreme Court's decision in Buckeye Check Cashing. But Buckeye's holding doesn't apply to contract-formation questions (as opposed to other contract defenses).pic.twitter.com/xEdBeBF6FG
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Granted, the Supreme Court's FAA jurisprudence in this area has made things unnecessarily complicated. The distinction one has to apply is between contract "formation" (for the court) versus "validity" (for the arbitrator, to the extent that it concerns the contract as a whole).
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When it comes to formation, a relatively obscure California statute, Civil Code 1558, might be relevant. The rule is that "it is essential" that the parties to the contract "exist" and "that it should be possible to identify them." Another excerpt from my brief in a recent case:pic.twitter.com/Jw3hjid5yT
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I'm less certain about how, if at all, that statute applies to this very unusual situation in which one seemingly essential party is identified only by a pseudonym and does not actually sign the agreement.
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Given the circumstances of Stormy’s representation and the law licenses currently in jeopardy, I just can’t believe there’s a power of attorney signed by Trump and seen by Daniels that hasn’t been mentioned.
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Agreed.
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If this is what breaks arbitration, or even just NDAs, I’ll do a silly little happy dance in the street.
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I not only don't see how arbitration clause can continue to stand, the more I think about it, think Trump not only opened himself up to depo, but Cohen up to discovery as well. Cohen has no atty client privilege to assert b/c Trump was not a knowing client. No A/C relationship.
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Plus Cohen’s own lawyer has disclaimed an a-c relationship on television
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Right??
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If Trump is not a party to the agreement which specifies that disputes must be submitted to binding arbitration, then I have a hard time seeing how he can force the matter to be resolved in arbitration.
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Trump would not be a party to the agreement if he neither signed it, nor authorized another to execute it on his behalf and bind him thereto.
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