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Professor Nancy Kim Weighs in on Legitimacy of Trump's Efforts to Sue for Breach of Contract

Non Disclosure

Since details of her alleged dalliances with President Trump began trickling in, adult performer Stormy Daniels has remained relatively quiet—instead opting to disseminate information via her attorneys. Daniels (whose real name is Stephanie Clifford) has been forced into quasi-silence by a disputed nondisclosure agreement and is now being sued with the president's consent for $20 million, a sum determined by the agreement's "liquidating damages" provision which states that she could owe $1 million per unauthorized disclosure.

A recent Slate.com article sought the expertise of five contract law professors to weigh in on whether Daniels will be forced to pay. According to California Western ProFlowers Distinguished Professor of Internet Studies Nancy S. Kim, there are two compelling reasons why the provision is not a reasonable estimate of damages, and could be rejected for appearing solely to penalize.

"The first is that it seeks both disgorgement [of profits Daniels makes from disclosing information] and liquidated damages. There is no attempt to show that the amount was based on a pre-estimate of actual damages," Kim explains. "How can every single disclosure be valued the same? A disclosure to People magazine is the same as telling your best friend? Is a conversation as damaging as pictures? I don't think so."

Kim asserts that the original agreement's intention falls outside the objective of contract law, because it allows Trump at his "sole discretion" to recover actual damages. "Providing the option of liquidated damages or actual damages seems to show that the parties did not intend to establish a specific sum to constitute damages in the event of breach," says Kim. Rather, "The purpose is to deter by threat of punishment."

Visit Slate.com to read the full article at: slate.com/news-and-politics/2018/03/why-trump-likely-wont-collect.