197 F. Supp. 3d 735
E.D. Pa.2016Background
- In 2006 William H. Cosby and Andrea Constand (and others) executed a confidential settlement agreement (CSA) resolving Constand v. Cosby; the CSA included broad confidentiality obligations covering the litigation and related allegations.
- Beginning in 2014–2016, various parties to the CSA (Andrea Constand, Gianna Constand, attorneys Kivitz and Troiani, and the National Enquirer/American Media) made disclosures or facilitated publication of materials (tweets, interviews, a deposited transcript, articles, and disclosures to prosecutors) concerning the underlying allegations.
- Cosby sued (Feb. 2016) for breach of contract against American Media, Kivitz, Troiani, Andrea Constand, and Gianna Constand, and unjust enrichment against Andrea Constand. All defendants moved to dismiss.
- At issue were (1) whether the CSA barred voluntary disclosures to law enforcement, (2) whether certain public statements or publication of a deposition breached the CSA, and (3) whether unjust enrichment survives where a written contract exists but parts may be unenforceable.
- The court evaluated motions under Rule 12(b)(6) standards, accepting asserted facts as true and resolving only legal issues appropriate at the pleading stage.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether CSA bars voluntary disclosures to law enforcement | CSA prohibits any disclosure of litigation-related information, so voluntary cooperation violated the CSA | Enforcement would conflict with public policy and therefore be unenforceable | Court: Contract provisions that bar voluntary reporting of alleged criminal conduct to law enforcement are unenforceable on public policy grounds — claims based on such disclosures dismissed |
| Whether release of deposition transcript states a breach against Kivitz/Troiani | They instructed or failed to prevent KLW (court reporter/vendor) from releasing the transcript in violation of CSA | They deny involvement and argue KLW was not their vendor; factual dispute | Court: At pleading stage, cannot resolve; plausible vendor relationship and factual issues survive — claim allowed to proceed |
| Whether public statements/articles (tweets, interviews, National Enquirer pieces, open letter, Castor complaint) are barred by CSA | These statements revealed litigation-related information and breached confidentiality | Defendants say disclosures concerned matters already in public record or did not reveal protected information | Court: Determination depends on factual record about what was public and what was disclosed; claims survive pleading stage (except law-enforcement disclosures) |
| Whether unjust enrichment claim against Andrea Constand survives | Because portion of CSA may be unenforceable, unjust enrichment remedy may be available for unenforceable portion | Constand: unjust enrichment inapplicable where a written contract governs; also asserts Cosby’s own breach (unclean hands) | Court: Unjust enrichment not dismissed now because enforceability of part of CSA is disputed and factual issues remain |
Key Cases Cited
- De-Benedictis v. Merrill Lynch & Co., 492 F.3d 209 (3d Cir. 2007) (pleading standard and view of factual allegations on Rule 12(b)(6))
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (U.S. 2007) (plausibility pleading standard)
- Papasan v. Allain, 478 U.S. 265 (U.S. 1986) (court not bound to accept legal conclusions as factual allegations)
- Fomby-Denson v. Dep’t of Army, 247 F.3d 1366 (Fed. Cir. 2001) (settlement confidentiality cannot bar reporting alleged criminal misconduct to law enforcement)
- Branzburg v. Hayes, 408 U.S. 665 (U.S. 1972) (agreements to conceal information about crimes disfavored as against public policy)
- Pennsy Supply, Inc. v. Am. Ash Recycling Corp. of Pa., 895 A.2d 595 (Pa. Super. Ct. 2006) (elements of breach of contract under Pennsylvania law)