Professional Documents
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Denson V Donald J Trump For President Class
Denson V Donald J Trump For President Class
Plaintiff(s),
-against-
Summons
Donald J. Trump for President, Inc.
You are hereby summoned to answer the complaint in this action and to serve
a copy of your answer, or, if the complaint is not served with this summons, to serve
a notice of appearance, on the Plaintiff's attorney within 20 days after the service of
this summons, exclusive of the day of service (or within 30 days after the service is
complete if this summons is not personally delivered to you within the State of New
York); and in case of your failure to appear or answer, judgment will be taken against
you by default for the relief demanded in the complaint.
June 1, 2020
Bowles & Johnson PLLC
by__________________________
David K. Bowles
Attorneys for Plaintiff
Jessica Denson
This is a copy of a pleading filed electronically pursuant to New York State court rules (22 NYCRR §202.5-b(d)(3)(i))
which, at the time of its printout from the court system's electronic website, had not yet been reviewed and
approved by the County Clerk. Because court rules (22 NYCRR §202.5[d]) authorize the County Clerk to reject
filings for various reasons, readers should be aware that documents bearing this legend may not have been
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Plaintiff,
v.
Plaintiff, by and through her undersigned counsel, in support of this class action
alleges as follows:
INTRODUCTION
1. Plaintiff Jessica Denson, on behalf of herself and all others similarly situated,
brings this class-action complaint against Defendant Donald J. Trump for President, Inc. (the
“Campaign”). This class action seeks a judgment declaring a form contract the Campaign
routinely required employees, contractors, and volunteers to sign during the 2016 election cycle
(the “Form NDA”) to be null, void, and unenforceable. The Form NDA contains two ill-defined
and vastly overreaching provisions. One provision, the non-disclosure clause, prohibits
individuals like Ms. Denson from ever disclosing any information “that Mr. Trump insists
remain private.” The second provision, the non-disparagement clause, prevents them from ever
“demean[ing] or disparag[ing] publicly” President Trump, any member of his family, and any of
his or his family’s companies. These provisions, taken together, constitute the main objective of
the Form NDA and render it unlawful under both state and federal law.
This is a copy of a pleading filed electronically pursuant to New York State court rules (22 NYCRR §202.5-b(d)(3)(i))
which, at the time of its printout from the court system's electronic website, had not yet been reviewed and
approved by the County Clerk. Because court rules (22 NYCRR §202.5[d]) authorize the County Clerk to reject
filings for various reasons, readers should be aware that documents bearing this legend may not have been
accepted for filing by the County Clerk. 2 of 30
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2. Many private employers ask employees to sign NDAs, and there is nothing
unlawful in the abstract about the use of NDAs, including by political campaigns.
3. The Form NDA drafted and imposed by the Campaign, however, is wildly broad,
prohibiting a vast array of speech about a candidate for the highest office and the current
President of the United States—forever. And the Campaign has repeatedly invoked its
4. New York has never condoned such extraordinary restrictions on the speech of
5. NDAs that indefinitely and broadly ban speech about candidates for office and
public officials violate both the First Amendment to the United States Constitution and Article I,
Section 8 of the New York State Constitution. These constitutional protections of speech and
press reflect “a profound national commitment to the principle that debate on public issues
should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic,
and sometimes unpleasantly sharp attacks on government and public officials” (New York Times
Co. v Sullivan, 376 US 254, 270 [1964]). “That is because ‘speech concerning public affairs is
more than self-expression; it is the essence of self-government’” (Snyder v Phelps, 562 US 443,
452 [2011] (quoting Garrison v Louisiana, 379 US 64, 74-75 [1964])), and “occupies the highest
rung of the hierarchy of First Amendment values” (id. (quoting Connick v Myers, 461 US 138,
145 [1983])). Unlimited nondisclosure and non-disparagement clauses like those in the Form
NDA are anathema to our constitutionally protected rights of free speech and press and to the
6. Candidates for public office and public officials cannot silence former campaign
workers forever. Former campaign workers have a right to criticize public officials and to
This is a copy of a pleading filed electronically pursuant to2 New York State court rules (22 NYCRR §202.5-b(d)(3)(i))
which, at the time of its printout from the court system's electronic website, had not yet been reviewed and
approved by the County Clerk. Because court rules (22 NYCRR §202.5[d]) authorize the County Clerk to reject
filings for various reasons, readers should be aware that documents bearing this legend may not have been
accepted for filing by the County Clerk. 3 of 30
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contribute to the public debate. That right can be limited only to protect truly sensitive
information for reasonable time periods; it cannot be stripped away entirely by contract.
PARTIES
7. Plaintiff Jessica Denson, the class representative, is a summa cum laude graduate
of The George Washington University, an award-winning journalist, and a member of the Screen
Actors Guild – American Federation of Television and Radio Artists with film and TV credits.
involved in political reporting. She created, anchored, and produced a weekly newsmagazine
from the White House, interned at CNN’s “The Situation Room” and the D.C. bureau for Cox
campaign organization that worked successfully for the election of Donald J. Trump as President
of the United States in 2016, and on information and belief is the same organization currently
11. The Campaign is incorporated in the Commonwealth of Virginia, and has its
principal place of business at 725 Fifth Avenue, New York, New York.
13. Venue is proper in this county pursuant to N.Y. C.P.L.R. § 503 and § 509.
FACTUAL ALLEGATIONS
14. On June 16, 2015, Donald Trump announced that he would run for President of
This is a copy of a pleading filed electronically pursuant to3 New York State court rules (22 NYCRR §202.5-b(d)(3)(i))
which, at the time of its printout from the court system's electronic website, had not yet been reviewed and
approved by the County Clerk. Because court rules (22 NYCRR §202.5[d]) authorize the County Clerk to reject
filings for various reasons, readers should be aware that documents bearing this legend may not have been
accepted for filing by the County Clerk. 4 of 30
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15. The Campaign formally launched a little less than two weeks later, filing its
Statement of Organization with the Federal Election Commission on June 29, 2015.
16. The Campaign successfully navigated the Republican primaries and, on July 16,
17. In the summer of 2016, Ms. Denson was working as an actress, a career that
predated her college education and which continued after college. She was a registered
18. After Donald Trump was nominated as the GOP’s candidate for President,
19. On August 18, 2016, she was hired by the Campaign as a national phone bank
administrator.
20. Ms. Denson’s initial role was to manage the national phone bank via its online
platform; draft voter surveys; support and coordinate with local field offices and volunteers; and
21. As a national phone bank administrator, Ms. Denson had no direct access to
candidate Trump, strategic campaign documents, or generally to any other sensitive campaign
22. On September 16, 2016, Ms. Denson was promoted to the role of Hispanic
Engagement Director. In that role, she developed the Campaign’s Spanish-language digital ad
campaign, advocated for certain human rights stances, created the Campaign’s Spanish
This is a copy of a pleading filed electronically pursuant to4 New York State court rules (22 NYCRR §202.5-b(d)(3)(i))
which, at the time of its printout from the court system's electronic website, had not yet been reviewed and
approved by the County Clerk. Because court rules (22 NYCRR §202.5[d]) authorize the County Clerk to reject
filings for various reasons, readers should be aware that documents bearing this legend may not have been
accepted for filing by the County Clerk. 5 of 30
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language Twitter account, supported Hispanic engagement events in target states, and liaised
between the national campaign and ground efforts for Hispanic engagement.
23. Despite initially hiring Ms. Denson to fill a relatively low-level role, the
Campaign required her to execute a form contract (the “Form NDA”) containing ill-defined,
expansive, and perpetual nondisclosure and non-disparagement clauses on August 18, 2016, four
days prior to when she started work on August 22, 2016. A true and correct copy of the contract
24. The nondisclosure clause provides that, “[d]uring the time of [her] service and at
all times thereafter,” Ms. Denson may not disclose or assist others in disclosing “Confidential
Information,” or use that information in any way detrimental to Mr. Trump, his family, or any of
limitation:
(Id. ¶ 6(a).)
This is a copy of a pleading filed electronically pursuant to5 New York State court rules (22 NYCRR §202.5-b(d)(3)(i))
which, at the time of its printout from the court system's electronic website, had not yet been reviewed and
approved by the County Clerk. Because court rules (22 NYCRR §202.5[d]) authorize the County Clerk to reject
filings for various reasons, readers should be aware that documents bearing this legend may not have been
accepted for filing by the County Clerk. 6 of 30
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26. The definition of “Confidential Information” does not stop there. It also includes
“all information . . . of a private, proprietary or confidential nature that Mr. Trump insists remain
27. The breadth and open-endedness of the nondisclosure clause leaves Ms. Denson
with no way of knowing what qualifies as Confidential Information and what does not.
28. The non-disparagement clause provides that “[d]uring the term of [her] service
and at all times thereafter,” Ms. Denson may not “demean or disparage publicly the Company,
Mr. Trump, any Trump Company, any Family Member, or any Family Member Company or any
asset any of the foregoing own, or product or service any of the foregoing offer” (Id. ¶ 2
(emphasis added)).
any member of Mr. Trump’s family, including, but not limited to,
Mr. Trump’s spouse, each of Mr. Trump’s children and
grandchildren and their respective spouses, including but not limited
to Donald J. Trump Jr., Eric F. Trump and Ivanka M. Trump,
Tiffany Trump, and Barron Trump, and their respective spouses,
children and grandchildren, if any, and Mr. Trump's siblings and
their respective spouses and children, if any.
(Id. ¶ 6(b).)
30. The contract defines “Trump Company” as “any entity, partnership, trust or
organization that, in whole or in part, was created by or for the benefit of Mr. Trump or is
controlled or owned by Mr. Trump,” and “Family Member Company” as “any entity,
partnership, trust or organization that, in whole or in part, was created by or for the benefit of any
Family Member or is controlled or owned by any Family Member” (Id. ¶¶ 6(c), 6(f)).
This is a copy of a pleading filed electronically pursuant to6 New York State court rules (22 NYCRR §202.5-b(d)(3)(i))
which, at the time of its printout from the court system's electronic website, had not yet been reviewed and
approved by the County Clerk. Because court rules (22 NYCRR §202.5[d]) authorize the County Clerk to reject
filings for various reasons, readers should be aware that documents bearing this legend may not have been
accepted for filing by the County Clerk. 7 of 30
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31. On information and belief, the terms “Trump Company” and “Family Member
Company” encompass over 500 individual companies, only approximately half of which use the
“Trump” branded name and none of which are specifically identified in the Campaign’s form
contract.
32. The Campaign’s Form NDA also provides that “any dispute arising under or
relating to this agreement may, at the sole discretion of each Trump Person, be submitted to
33. “Trump Person” is defined as “each of Mr. Trump, each Family Member, each
Trump Company (including but not limited to the Company) and each Family Member
34. The contract specifies that the “laws of the State of New York” are to govern any
36. On information and belief, beginning in or about June 2015, the Campaign
required all employees, contractors, and volunteers to sign the Form NDA or a version thereof. A
true and correct copy of the Campaign’s standard Form NDA containing the nondisclosure and
37. On information and belief, the Form NDA contracts required by the Campaign are
substantially similar, if not identical, for the majority of the Campaign’s employees, contractors,
This is a copy of a pleading filed electronically pursuant to7 New York State court rules (22 NYCRR §202.5-b(d)(3)(i))
which, at the time of its printout from the court system's electronic website, had not yet been reviewed and
approved by the County Clerk. Because court rules (22 NYCRR §202.5[d]) authorize the County Clerk to reject
filings for various reasons, readers should be aware that documents bearing this legend may not have been
accepted for filing by the County Clerk. 8 of 30
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38. During the 2016 campaign, on information and belief, the Campaign had over one
hundred employees and contractors on its payroll and hundreds more volunteers who each
executed contracts containing the same restrictions as in the Form NDA signed by Ms. Denson.
D. The Form NDA Continues to Restrict the Speech of Ms. Denson and Other
Former Campaign Employees, Contractors, and Volunteers On Matters of
Public Concern
39. On November 8, 2016, Donald Trump was elected President of the United States.
40. Ms. Denson’s tenure with the Campaign ended two days later on November 10,
2016.
41. Although Ms. Denson’s employment with the Campaign ended over three years
ago, the Campaign’s indefinite and broad Form NDA purports to bind her to this day.
42. Other former employees, contractors, and volunteers from the 2016 campaign
43. Under the non-disparagement clause, Ms. Denson and other former Campaign
employees, contractors, and volunteers have been and remain prohibited from criticizing the
44. They are also prohibited from criticizing the President’s daughter and Advisor to
the President, Ivanka Trump; the President’s son-in-law and Director of the White House Office
of American Innovation, Jared Kushner; any of the President’s other family members; and any of
the over 500 companies affiliated with the President and his family.
45. Under the nondisclosure clause, Ms. Denson and other former Campaign
employees, contractors, and volunteers have been and remain prohibited from disclosing any
This is a copy of a pleading filed electronically pursuant to8 New York State court rules (22 NYCRR §202.5-b(d)(3)(i))
which, at the time of its printout from the court system's electronic website, had not yet been reviewed and
approved by the County Clerk. Because court rules (22 NYCRR §202.5[d]) authorize the County Clerk to reject
filings for various reasons, readers should be aware that documents bearing this legend may not have been
accepted for filing by the County Clerk. 9 of 30
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46. The Campaign has routinely threatened to enforce and/or initiated arbitration to
enforce its Form NDA to stop former Campaign workers from engaging in speech related to
matters of public concern, including their views on the President’s time in office.
47. For example, when former Campaign staffer Omarosa Manigault Newman
published a book about her time in the Trump White House (Unhinged: An Insider’s Account of
the Trump White House) in August 2018, the Campaign sought to enforce its Form NDA against
Newman in arbitration.1
48. When former Campaign staffer Cliff Sims published a book about his experiences
in the Trump White House (Team of Vipers) in January 2019, the Campaign’s Executive
Director Michael Glassner threatened to enforce its Form NDA against Sims.2
49. When former Campaign staffer Alva Johnson dropped her lawsuit alleging that
President Trump forcibly kissed her in September 2019, the Campaign threatened legal action to
1
Scott Horsley, Trump Campaign Targets Omarosa Manigault Newman Over Tell-All Book, NPR [Aug. 14, 2018],
https://www.npr.org/2018/08/14/638551941/trump-campaign-targets-omarosa-manigault-newman-over-tell-all-
book.
2
Michael Glassner (@michaelglassner), Twitter [Jan. 29, 2019, 9:03 a.m.],
https://twitter.com/michaelglassner/status/1090249001746747392; David Jackson, Donald Trump: Aide-Turned-
Author Cliff Sims Violated Non-Disclosure Agreement, USA Today [Jan. 29, 2019],
https://www.usatoday.com/story/news/politics/2019/01/29/donald-trump-cliff-sims-team-of-vipers/2708590002/.
3
Veronica Stracqualursi, Former Trump Campaign Staffer Drops Lawsuit but Stands by Claims He Forcibly Kissed
Her, CNN [Sep. 5, 2019], https://www.cnn.com/2019/09/05/politics/alva-johnson-trump-lawsuit-sexual-assault-
allegations/index.html.
This is a copy of a pleading filed electronically pursuant to9 New York State court rules (22 NYCRR §202.5-b(d)(3)(i))
which, at the time of its printout from the court system's electronic website, had not yet been reviewed and
approved by the County Clerk. Because court rules (22 NYCRR §202.5[d]) authorize the County Clerk to reject
filings for various reasons, readers should be aware that documents bearing this legend may not have been
accepted for filing by the County Clerk. 10 of 30
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F. The Campaign Attempted to Enforce Its Unlawful Form NDA Against Ms.
Denson
50. The Campaign also attempted to enforce the Form NDA against Ms. Denson to
stop her from speaking about working conditions at the Campaign, and specifically about her
51. The issue of workplace conditions for political staffers is a matter of public
concern that may bear on a candidate’s fitness for office. In the 2020 presidential campaign,
news organizations have already covered allegations of harassment and other mistreatment of
52. On November 9, 2017, Ms. Denson filed a pro se lawsuit against the Campaign in
the New York Supreme Court, County of New York, captioned Jessica Denson v Donald J.
Trump for President, Inc., Index No. 101616-17 (the “State Court Action”). In that still-pending
lawsuit, Ms. Denson is asserting (now with counsel) claims of sex-discrimination and slander
53. On December 20, 2017, in response to the State Court Action, the Campaign filed
an arbitration demand. The Campaign asserted that Ms. Denson breached the Form NDA’s
information and disparaging statements . . . in connection with [the] lawsuit she filed against [the
4
Matt Flegenheimer & Sydney Ember, How Amy Klobuchar Treats Her Staff, NY Times [Feb. 22, 2019],
https://www.nytimes.com/2019/02/22/us/politics/amy-klobuchar-staff.html (Klobuchar); Alex Thompson, Warren
Campaign Fires Senior Staffer for ‘Inappropriate Behavior’, Politico [Oct. 4, 2019],
https://www.politico.com/news/2019/10/04/warren-staffer-inappropriate-behavior-campaign-2020-028583
(Warren); Michael Cranish, Mike Bloomberg For Years Has Battled Women’s Allegations of Profane, Sexist
Comments, Wash Post [updated Feb. 15, 2020], https://www.washingtonpost.com/graphics/2020/politics/michael-
bloomberg-women/ (Bloomberg); Sydney Ember and Katie Benner, Sexism Claims From Bernie Sanders’s 2016
Run: Paid Less, Treated Worse, NY Times [Jan. 2, 2019], https://www.nytimes.com/2019/01/02/us/politics/bernie-
sanders-campaign-sexism.html (Sanders).
54. In March 2018, the Campaign moved the state court to compel arbitration of
Ms. Denson’s claims, citing its unilateral authority to compel arbitration of disputes arising out
of the contract.
55. Ms. Denson did not participate in the arbitration demanded by the Campaign, on
the ground that her contract did not govern her claims against the Campaign.
56. In June 2018, Ms. Denson created a GoFundMe page so that she could find and
finance legal representation. On her homepage, Ms. Denson summarized the allegations of her
discrimination claim and the Campaign’s use of the Form NDA to retaliate against her, and
asked for help paying for her legal efforts. She shared the GoFundMe page on a Twitter feed she
57. On August 9, 2018, the state court denied the Campaign’s motion to compel
arbitration of Ms. Denson’s state claims, holding that all of Ms. Denson’s claims, including her
sex-discrimination, harassment, and common-law claims, were outside the scope of the Form
NDA.
58. In the midst of her State Court Action, Ms. Denson commenced another pro se
lawsuit, this time in federal court in the Southern District of New York (Denson v Donald J.
Trump for President, Inc. [SD NY, No. 18-CV-2690 (JMF)]). Through the federal lawsuit,
Ms. Denson sought to have her contract declared void and unenforceable.
59. The Campaign moved to compel arbitration of Ms. Denson’s federal claims, and
on August 30, 2018, the federal court granted the Campaign’s motion (Id., 2018 WL 4568430,
*2 [Aug. 8, 2018]). The federal court dismissed Ms. Denson’s federal lawsuit and later denied
60. During this time, the Campaign continued to press forward in the arbitration it had
61. No party in the arbitration ever argued or put at issue the validity of the
62. Despite the fact that Ms. Denson never participated in that arbitration, the
arbitrator issued a partial award to the Campaign on October 19, 2018, followed by a final award
on December 12, 2018 (collectively, “the award”), totaling $49,507.64. A true and correct copy
of the October 19, 2018, partial award is attached as exhibit C, and a true and correct copy of the
63. The arbitrator concluded that Ms. Denson breached the contract “by disclosing,
disseminating and publishing confidential information in the Federal Action, and by making
disparaging statements about Claimant and the Agreement on the Internet on her GoFundMe
64. The Campaign moved to have the award confirmed by the state and federal
courts.
65. On July 8, 2019, the state court confirmed the award, and on July 23, 2019, the
federal court subsequently held that the state court’s affirmance was preclusive on the issue
Department”) unanimously reversed the decision affirming the Arbitration award and vacated the
Arbitration award in its entirety. It declared the Arbitration award to have been against public
policy and the arbitrator to have exceeded his authority (Denson v Donald J. Trump For
President, Inc., 180 AD3d 446, 454, 116 NYS3d 267, 276 [App Div 2020]). The Court further
held that, “[b]y concluding that the allegations in the federal action are tantamount to disclosure
of confidential information violative of the NDA, the arbitrator improperly punished plaintiff for
68. From the time the Campaign filed its Arbitration in December of 2017, Ms.
Denson was forced into a defensive posture for having the temerity to challenge the Campaign’s
conduct toward her. Until the arbitration award was reversed over two years later, she withstood
constant financial threat and pressure to withdraw her claims due to the Campaign’s incessant
pursuit and expansion of the Arbitration. During Ms. Denson’s appeal of the state court’s
decision affirming the arbitration award, the Campaign attempted to execute on the award,
serving subpoenas and restraining notices on Ms. Denson, her bank accounts, and sources of
funding for her lawsuit. The Campaign even attempted to restrain Ms. Denson’s counsels’
escrow account.
69. During the entire period from December 2017 to February 2020, Ms. Denson
perforce avoided or moderated any public comments regarding the Campaign and the President
because of the threat caused by the Arbitration award and the Campaign’s aggressive efforts to
enforce it. The Campaign used its litigation to enforce the Form NDA to restrain Ms. Denson’s
freedom of speech during a period in which the public could have significantly benefited from
her knowledge.5
5
For example, the primary subject of Ms. Denson’s harassment and sexual discrimination claims in her State Action
is Camilo Sandoval, with whom Ms. Denson is all too familiar. Sandoval served as the Director of Data Operations
for the Trump Campaign, and he was subsequently appointed as acting Chief Information Officer at the U.S.
Department of Veterans Affairs (the “VA”) (see Letter from Sen. Richard Blumenthal, et al. to Thomas Bowman,
Deputy Sec’y US Dept. of Veterans Affairs [May 5, 2018],
https://www.blumenthal.senate.gov/imo/media/doc/05.15.18%20-%20VA%20-%20IT%20Systems.pdf). Sandoval’s
work on the Campaign raised concerns, when it was revealed that he served as the Director of Data Operations
during the period when the Campaign contracted with Cambridge Analytica (Id.). His stint as CIO at the VA was
likewise marked by controversy, as the VA failed to timely deliver electronic housing allowance payments to more
70. On February 20, 2019, after the federal court determined that Ms. Denson was
required to challenge the Form NDA in Arbitration and before the state court ruled on the
Campaign’s motion to affirm the arbitration award, Plaintiff submitted a class action arbitration
demand (the “Class Arbitration”) before the American Arbitration Association (“AAA”) to
71. The Campaign sought to delay the Class Arbitration by arguing res judicata and
collateral estoppel from the Arbitration, and also by reserving decision on whether the claim
72. On March 29, 2019, the Campaign applied to the original arbitrator, Judge Kehoe,
to rule the new class action arbitration invalid on res judicata and collateral estoppel grounds,
73. The Campaign argued that vacatur of the original arbitration award, which
Ms. Denson had not yet obtained, would be the only circumstance under which res judicata and
74. On May 20, 2019, Judge Kehoe issued a decision determining that he had no
75. On May 22, 2019, counsel for the Campaign cited the “sole discretion” clause in
paragraph 8B of the Form NDA and “reserved its contractual right to not consent to the AAA’s
than 10,000 veterans and experienced significant delays in digitizing health records (Id.; see also Christopher Jones,
Farewell to the Trump Political Appointee Who Brought IT Chaos to the Department of Veterans Affairs, Pacific
Standard [Feb. 19, 2019], https://psmag.com/social-justice/farewell-to-the-trump-political-appointee-who-brought-
it-chaos-to-the-dept-of-veterans-affairs). Ms. Denson could have contributed significantly to the public debate
around Sandoval’s work on the Campaign and his time in government.
jurisdiction” over the Class Arbitration. A true and correct copy of the email from counsel for the
76. The following week, on May 29, 2019, counsel for the Campaign advised the
Arbitration.” A true and correct copy of the email from counsel for the Campaign is included in
exhibit E.
77. On June 3, the Campaign filed a brief in the Federal Court litigation confirming
its decision to exercise its unilateral right not to arbitrate Ms. Denson’s class claims. A true and
79. By refusing to consent to arbitrate Ms. Denson’s Class Arbitration Demand, the
Campaign waived any right to arbitrate the current dispute, and Ms. Denson now proceeds before
this Court, seeking a declaration that the Form NDA is invalid as a matter of law.
80. Despite the Campaign’s strenuous efforts to enforce its Form NDA against
Ms. Denson and others, the Form NDA’s broad and indefinite restrictions on Ms. Denson’s and
81. The First Amendment to the United States Constitution and Article I, Section 8 of
the New York Constitution protect the freedoms of speech and the press.
82. A major purpose of the First Amendment is “to protect the free discussion of
government is operated or should be operated, and all such matters relating to political
83. Speech concerning such public affairs “is the essence of self-government” and
“occupies the highest rung of the hierarchy of First Amendment values” (Snyder v Phelps, 562
US 443, 452 [2011] (quoting Garrison v Louisiana, 379 US 64, 74–75 [1964]; Connick v Myers,
84. The constitutional protections of speech and the press accordingly limit states’
power to sanction or enforce contracts of silence that restrict speech about public officials and
candidates for office (see New York Times Co. v Sullivan, 376 US 254, 265 [1964] (“The test is
not the form in which state power has been applied but, whatever the form, whether such power
85. That is particularly true where, as here, contracts of silence are enforced by the
political campaign of a current public official in conjunction with, and for the benefit of, the
public official (see Manhattan Cmty. Access Corp. v Halleck, 587 US —, —, 139 S Ct 1921,
1928 [2019] (“Under this Court’s cases, a private entity can qualify as a state actor . . . when the
86. Although campaign workers may waive their free speech rights by signing
enforceable if, under the circumstances, “the interest in enforcing the waiver is not outweighed
87. Any interest of the Campaign in enforcing its Form NDA is substantially
outweighed by the public interest in the speech of Ms. Denson and other Campaign workers on
88. The Campaign has yet to demonstrate any legitimate reason for imposing on staff
its broad, sweeping Form NDA with ill-defined and unlimited confidentiality and non-
disparagement obligations.
89. By contrast, the benefit to the public in allowing former campaign workers to
speak about—and perhaps speak against—a candidate for the highest public office in the land is
obvious and compelling. The First Amendment and Article I, Section 8 of the New York
90. The Form NDA violates New York’s prohibition on unreasonable post-
necessary to protect the employer’s legitimate interests, not harmful to the general public and not
unreasonably burdensome to the employee” (Ashland Mgmt. Inc. v Altair Investments NA, LLC,
59 AD3d 97, 101, 869 NYS2d 465 [App Div 2008] (quoting BDO Seidman v Hirshberg, 93
NY2d 382, 388-89, 712 NE2d 1220 [Ct App 1999]), aff’d as modified, 14 NY3d 774, 925 NE2d
92. Neither the nondisclosure clause nor the non-disparagement clause is reasonable
scope. The nondisclosure clause expansively prohibits the disclosure of “all information . . . that
Mr. Trump insists remain private or confidential” (Id. ¶¶ 1, 6(a)). The non-disparagement clause
his family, or any of his and his family’s companies and assets (Id. ¶ 2).
94. The Form NDA, as written, is not necessary to protect the Campaign’s legitimate
interests.
95. Regarding the nondisclosure clause, the Campaign may have had a legitimate
interest in protecting confidential information that is akin to trade secrets, such as confidential
“contact lists,” “notes,” and certain “financial statements” (Id. ¶ 6(a)). It does not have a
legitimate interest in protecting “all information” that President Trump unilaterally “insists
96. Regarding the non-disparagement clause, the Campaign may have a legitimate
interest in current employees not disparaging President Trump. It does not have a legitimate
President Trump, his family, or any of his and his family’s companies or assets (Id. ¶ 2).
97. Both the nondisclosure clause and the non-disparagement clause are unreasonably
burdensome on former campaign workers, as they severely restrict their ability to contribute to
public debate on matters concerning the current President of the United States and various family
98. The Campaign’s Form NDA also injures the public, as it prevents those with
relevant information and informed opinions about the current President of the United States from
sharing their experiences and views now, during this year’s presidential election, or ever.
The Form NDA Lacks the Requisite Definiteness Under New York Law
99. The Form NDA is invalid due to the lack of sufficiently definite terms.
sufficiently definite to assure that the parties are truly in agreement with respect to all material
terms” (e.g., Matter of Express Indus. & Terminal Corp. v New York State Dept. of Transp., 93
NY2d 584, 589 [1999]). “Few principles are better settled in the law of contracts than the
requirement of definiteness. If an agreement is not reasonably certain in its material terms, there
can be no legally enforceable contract.” (Cobble Hill Nursing Home, Inc. v Henry & Warren
Corp., 74 NY2d 475, 482, 548 NE2d 203 [Ct App 1989].)
102. The non-disparagement clause, for its part, purports to protect over 500 individual
companies, only approximately half of which use the “Trump” branded name and none of which
103. It is impossible for any signatory to know what information may not be disclosed
and which companies and persons the non-disparagement clause purports to protect.
104. The Form NDA lacks the sufficient definiteness required of binding contracts.
105. The Form NDA is unconscionable on its face and therefore invalid.
106. Contracts are unconscionable when there is a lack of a meaningful choice by one
party and contractual terms that unreasonably favor the other party.
107. Campaign workers in this case lacked a meaningful choice: if they wished to
work for the Campaign, they were required to sign its Form NDA as written and imposed by the
Campaign.
108. The one-sided terms of the Form NDA unreasonably favor the Campaign.
109. The worker is forbidden from ever disparaging the Campaign, President Trump,
his family, or any of President Trump and his family’s businesses, but the Campaign and the
Trump entities are not forbidden from disparaging the worker (exhibit A, ¶ 2).
includes any information President Trump unilaterally deems private, but the Campaign is not
111. As described above in Paragraphs 50 through 79, the Campaign has gamed this
unilateral, discretionary Form NDA by compelling Plaintiff to arbitrate when she sues, and
unconscionable.
The Form NDA Is Otherwise Against Public Policy Under New York Law
113. The Form NDA is invalid because it is otherwise against public policy.
115. The non-disparagement and nondisclosure clauses are against public policy as
116. New York maintains a deep and abiding commitment to robust public debate.
This State, a cultural center for the Nation, has long provided a
hospitable climate for the free exchange of ideas. That tradition is
embodied in the free speech guarantee of the New York State
Constitution, beginning with the ringing declaration that “[e]very
citizen may freely speak, write and publish . . . sentiments on all
subjects.” (N.Y. Const., art. I, § 8.) Those words, unchanged since
117. The non-disparagement and nondisclosure clauses are also against public policy
because the Campaign uses them to threaten to impose and actually to impose significant
retaliatory financial penalties on individuals for asserting their statutory rights and disclosing
wrongdoing.
118. Federal, state, and local law prohibit employers from retaliating against
employees for asserting statutory employment claims in court or before an administrative agency
(see, e.g., 42 USC § 2000e–3(a); NY Exec. Law § 296(7); NYC Admin Code § 8–107(7)).
119. As the First Department held in invalidating the Campaign’s arbitration award
against Ms. Denson, “[t]here is a deep-rooted, long-standing public policy in favor of a person’s
right to make statements during the course of court proceedings without penalty” (Denson, 116
NYS3d at 276).
§ 548; 7 Samuel Williston & Richard A. Lord, A Treatise on the Law of Contracts § 15.8 [4th ed
2016]; 6A Arthur Linton Corbin, Corbin on Contracts § 1430 [1962]; see also NY Lab Law §
121. The Form NDA, however, contains no exception allowing Campaign workers to
123. The non-disclosure clause contains a narrow carveout that permits Campaign
workers to disclose Confidential Information only when they have a “legal obligation” to do so
and, even then, only after obtaining the Campaign’s consent (Id. ¶ 1(e)).
124. Instead, the Campaign uses the Form NDA in an effort to prevent former
125. On February 27, 2019, Michael Cohen testified before Congress that the
Campaign’s use of the Form NDA, along with President Trump’s efforts to enforce it, is
specifically intended to prevent people from coming forward with claims of wrongdoing.
126. For example, as set forth above, the Campaign threatened to enforce its Form
NDA against former staffer Alva Johnson after she dropped her lawsuit alleging that President
127. The Campaign has also actually used, and will continue to use, the Form NDA to
prevent former Campaign workers from vindicating their rights or reporting wrongdoing.
128. For example, as set forth above, the Campaign used its Form NDA to retaliate
against Ms. Denson for bringing the State Court Action to enforce her rights to be free of a
129. The Form NDA is invalid as a matter of law both because it unreasonably
burdens Class members’ speech, and because it allows the Campaign to threaten to impose and
actually impose significant financial penalties on individuals in retaliation for the assertion of
130. This action meets all of the requirements of a class action under CPLR § 901.
131. The putative Class consists of all Campaign employees, contractors, and
volunteers who executed a Form NDA, or any contract containing similar nondisclosure and
non-disparagement clauses, during the 2016 election cycle. This class is too numerous to allow
133. While Plaintiff does not know the exact number of the members of the Class,
Plaintiff believes that there are over one hundred members in the Class and likely several
hundreds of members.
134. The legal validity or invalidity of the Form NDA constitutes questions common to
the Class, and predominates over any question affecting only individual members.
135. The claim for a declaration of invalidity by the Plaintiff, as the Class
representative, is typical of the claims of members of the Class. Plaintiff and all members of the
Class are similarly affected by Defendant’s invalid and unlawful Form NDA.
136. Plaintiff, as a class representative, will fairly and adequately protect the interests
of the Class, as demonstrated by her tenacity in fighting this dispute in various forums over the
last several years. Plaintiff’s claims arise out of the same common course of conduct giving rise
to the claims of other members of the Class. Plaintiff’s interests are coincident with, and not
antagonistic to, those of the other members of the Class. Plaintiff is represented by counsel who
are competent and experienced in the prosecution of First Amendment and New York
137. A class action is superior to any other method for the resolution of this dispute, in
that, among other things, such treatment will permit a large number of similarly situated persons
to prosecute their common claims in a single forum simultaneously, efficiently, and without the
unnecessary duplication of evidence, effort, and expense that numerous individual actions would
engender. The benefits of proceeding through the class mechanism, including providing injured
persons or entities with a method for obtaining redress for claims that might not be practicable to
pursue individually, substantially outweigh any difficulties that may arise in the management of
138. The prosecution of separate actions by individual members of the Class would
139. Plaintiff incorporates by reference the preceding paragraphs as if fully set forth
herein.
140. New York law provides for declaratory judgment of the validity or invalidity of
141. The Form NDA is unlawful under New York contract law for several reasons.
employment restrictive covenants. They are unreasonable in duration and scope. They are not
necessary to protect the Campaign’s legitimate interests. They are unreasonably burdensome on
Class members as they severely restrict their Class members’ state and federal constitutional
rights to contribute to public debate on matters concerning the current President of the United
States and various family members who serve as key advisors. And the nondisclosure and non-
disparagement clauses injure the public, as they prevent Class members with relevant
information and informed opinions about the current President of the United States from sharing
their experiences and views now, during this year’s presidential election, or ever.
it is impossible for any signatory to know what information may not be disclosed and which
members had no meaningful choice but to sign the contracts and the nondisclosure and non-
145. The nondisclosure and non-disparagement clauses are otherwise against public
policy under New York contract law both because they unreasonably restrict Class members’
speech, and because they allow the Campaign to threaten to impose and actually impose
significant financial penalties on individuals in retaliation for the assertion of their statutory
146. Ms. Denson and members of the putative class are harmed by the unlawful Form
NDA, as they are currently unlawfully prohibited from exercising their free speech rights, as well
147. Ms. Denson and members of the putative class face imminent risk if they
disregard the Form NDA, as the Campaign routinely threatens and attempts to enforce its Form
NDA.
148. Plaintiff incorporates by reference the preceding paragraphs as if fully set forth
herein.
149. New York law provides for declaratory judgment of the validity or invalidity of
150. Article I, Section 8 of the New York Constitution provides that “[e]very citizen
may freely speak, write and publish his or her sentiments on all subjects, being responsible for
the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or
of the press.”
Ms. Denson’s and similarly situated individuals’ rights of free speech and of the press by
unlawfully restraining them from ever again criticizing the current President of the United States,
152. The nondisclosure clause of the Form NDA violates Ms. Denson’s and similarly
situated individuals’ rights of free speech and of the press by unlawfully restraining their ability
153. The public interest in uninhibited, robust, and wide-open debate on matters of
outweighs any legitimate interest the Campaign has in enforcing the Form NDA.
154. Ms. Denson and members of the putative class face imminent risk if they
disregard the Form NDA, as the Campaign routinely threatens and attempts to enforce its Form
NDA.
155. Plaintiff incorporates by reference the preceding paragraphs as if fully set forth
herein.
156. New York law provides for declaratory judgment of the validity or invalidity of
157. The First Amendment to the United States prohibits abridgments of “the freedom
Ms. Denson’s and similarly situated individuals’ rights of free speech and of the press by
unlawfully restraining them from ever again criticizing the current President of the United States,
159. The nondisclosure clause of the Form NDA violates Ms. Denson’s and similarly
situated individuals’ rights of free speech and of the press by unlawfully restraining their ability
160. The public interest in uninhibited, robust, and wide-open debate on matters of
outweighs any legitimate interest the Campaign has in enforcing the Form NDA.
161. Ms. Denson and members of the putative class face imminent risk if they
disregard the Form NDA, as the Campaign routinely threatens and attempts to enforce its Form
NDA.
RELIEF REQUESTED
WHEREFORE, Plaintiff, on behalf of herself and the Class, prays for relief as follows:
contractors, and volunteers for the Campaign who have signed the Form NDA or
C. Declaratory judgment that the Campaign’s Form NDA, including the one signed
by Plaintiff, and any similar contracts the Campaign required any member of the
D. Assessment of Plaintiff’s reasonable costs and attorneys’ fees, along with any
notice costs and forum fees against the Campaign in their entirety; and
By:____________________
David K. Bowles
BOWLES & JOHNSON PLLC
14 Wall Street, 20th Floor
New York, New York 10005
Tel. (212) 390-8842
Fax (866) 844-8305
Email: [email protected]
John Langford
UNITED TO PROTECT DEMOCRACY, INC.
555 W. 5th St.
Los Angeles, CA 90013
Telephone: (202) 579-4582
Fax: (929) 777-8428
Email: [email protected]
Brittany Williams
UNITED TO PROTECT DEMOCRACY, INC.
1900 Market St., 8th Fl.
Philadelphia, PA 19103
Telephone: (202) 579-4582
Fax: (929) 777-8428
Email: [email protected]
Anne Tindall
UNITED TO PROTECT DEMOCRACY, INC.
2020 Pennsylvania Ave. NW, Suite # 163
Washington, DC 20006
Telephone: (202) 579-4582
Fax: (929) 777-8428
Email: [email protected]*
David A. Schulz
BALLARD SPAHR LLP
1675 Broadway, 19th Floor
New York, NY 10019
Telephone: (212) 850-6103
Fax: (212) 223-1942
Email: [email protected]
*
Harvard Law Student Graham Provost, ’21, helped prepare this complaint. The complaint does not purport to
represent the institutional views, if any, of Harvard Law School.