Denson v. Donald J. Trump For President, Inc.

Facts

P is the former Director of Hispanic Engagement for D, the company that ran Donald J. Trump's 2016 presidential campaign. P  contends that during her term of employment, she was subject to a hostile work environment and experienced sex discrimination and that after she complained, high-ranking persons in the campaign retaliated against her. P sued D asserting violations of the New York City Human Rights Law against the campaign, including sexual discrimination, a hostile work environment, and retaliation. She claimed defamation, defamation per se, and intentional and negligent infliction of emotional distress. As a condition of employment P was required to sign a non-competition, non-disclosure, non-disparagement agreement (NDA). The NDA contains prohibitions against P disclosing, disseminating, or publishing any confidential information detrimental to Candidate Donald J. Trump, or any 'Trump Person,' defined in the NDA to include various Trump family members and Trump entities. The NDA prohibits P from demeaning or disparaging Trump publicly. These particular provisions have no temporal duration, no geographic restriction, and apply to all manner of expression in all and any contexts. Confidential information is expressly defined and includes, in its most general application, all information 'that Mr. Trump insists remain private or confidential.' There is no definition of disparagement or demeaning conduct in the NDA. The NDA provides that any dispute arising under or relating to the NDA, at the sole discretion of each covered Trump person or entity, may be submitted to binding arbitration in the State of New York. P has no right to seek arbitration. The NDA does not restrict P from asserting her rights in a court proceeding, but if that dispute arises out of the NDA, and Trump demands arbitration, then P has no right to challenge the procedure. D filed a demand to arbitrate claiming P breached confidentiality and non-disparagement obligations contained in a written agreement she executed during her employment. P breached her obligations by publishing certain confidential information and disparaging statements in connection with a lawsuit she filed against D in New York Supreme Court.  In March 2018, D filed a  motion to compel arbitration. The court found the arbitration clause did not apply to 'any' dispute between the parties or to any employment-related dispute. It held that the claims made in this state action arise out of the terms of P's employment and are not covered by the NDA. On March 26, 2018, P commenced a second action in Federal District Court. She sought a declaration that the NDA was void and unenforceable as against public policy. D brought another motion to compel arbitration. D brought another motion to compel arbitration. The motion was granted: it was up to the arbitrator to rule on whether the arbitration agreement was valid. P chose not to fully participate in arbitration. P argued that per Judge Bluth's August 9, 2018 order, the claims she made in this human rights action were not part of the arbitration and that she was not time-barred and was appealing the federal court's finding that the validity of the NDA as a whole should be decided at arbitration. The arbitrator concluded that the issue of the validity of the NDA was before him. He decided that the NDA, as a whole, was neither void nor unenforceable. The arbitrator held that P breached the NDA by 'disclosing, disseminating, and publishing confidential matter in the Federal Action, and by making disparaging comments D on the Internet on her GoFundMe page and on her Twitter account.' TD was awarded $24,808.20 in attorneys' fees in the federal action.  It was held that the mere filing of this State Human Rights Law action was itself a violation of the NDA. P brought a motion to vacate the award. Judge Bluth denied the motion. This appeal ensued.

Issues

Rule of Law

Holding and Decision

Legal Analysis

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