Case 2:18-cv-02217-SJO-FFM Document 30-1 Filed 04/09/18 Page 1 of 23 Page ID #:521 A VENATTI & ASSOCIATES, APC 2 Michael J. Avenatti, State Bar No. 206929 Ahmed Ibrahim, State Bar No. 238739 3 520 Newport Center Drive, Suite 1400 4 Newport Beach, CA 92660 Tel: (949) 706-7000 5 Fax: (949) 706-7050 1 6 7 Attorneys for Plaintiff Stephanie Clifford a.k.a. Stormy Daniels a.k.a. Peggy Peterson 8 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA 11 12 13 14 STEPHANIE CLIFFORD a.k.a. STORMY DANIELS a.lea. PEGGY PETERSON, an individual, 15 Plaintiff, 16 17 l8 19 20 21 22 23 vs. DONALD J. TRUMP a.k.a. DAVID DENNISON, an individual, ESSENTIAL CONSULTANTS, LLC, a Delaware Limited Liability Company, MICHAEL COHEN, an individual, and DOES 1 through 10, inclusive CASE NO.: 2:18-cv-02217-SJO-FFM DECLARATION OF STEPHANIE CLIFFORD IN SUPPORT OF PLAINTIFF'S OPPOSITION TO DEFENDANT ESSENTIAL CONSULTANTS, LLC'S MOTION TO COMPEL ARBITRATION Hearing Date: April 30, 2018 Hearing Time: 10:00 a.m. Location: 350 West 1st Street Courtroom lOC Los Angeles, CA 90012 Defendants. 24 25 26 27 28 DECLARATION OF STEPHANIE CLIFFORD IN SUPPORT OF PLAINTIFF'S OPPOSITION TO DEFENDANT ESSENTIAL CONSULTANTS, LLC'S MOTION TO COMPEL ARBITRATION Case 2:18-cv-02217-SJO-FFM Document 30-1 Filed 04/09/18 Page 2 of 23 Page ID #:522 1 DECLARATION OF STEPHANIE CLIFFORD 2 3 I, STEPHANIE CLIFFORD (aka Stormy Daniels), declare as follows: 4 1. I am the plaintiff in this action. I am over the age of 18 years. I am 5 submitting this declaration in support of Plaintiffs Opposition to Defendant Essential 6 Consultants, LLC's Motion to Compel Arbitration. I have personal knowledge of the 7 information stated herein and if called to testify to the same would and could do so. 8 9 10 2. On or about October 28, 2016 I signed the "Confidential Settlement Agreement and Mutual Release" and "Side Letter Agreement." 3. Attached hereto as Exhibit 1 is a true and correct copy of the document titled 11 "Confidential Settlement Agreement and Mutual Release," which I will refer to as the 12 "Settlement Agreement." 13 14 15 4. Attached hereto as Exhibit 2 is a true and correct copy of the document titled "Side Letter Agreement," which was Exhibit A to the Settlement Agreement. 5. When I signed the Settlement Agreement and Side Letter Agreement, it was 16 my understanding that Donald Trump was a party to the Settlement Agreement and that 17 he was going to sign both documents. In fact, that understanding continued even after I 18 signed the documents. Until approximately February of this year, I was unaware that Mr. 19 Trump did not sign the Settlement Agreement, and I had no idea that Mr. Trump would 20 later claim that he was not a party to the Settlement Agreement. Had I known that Mr. 21 Trump was not going to sign both documents or that he was going to later claim that he 22 was not a party to the Settlement Agreement, I would have never signed either document 23 nor would I have accepted the $130,000 payment. 24 6. It was never my understanding that I was entering into a contract solely with 25 Essential Consultants, LLC and not with Mr. Trump. Such an agreement would not have 26 made any sense for many reasons, including, the fact that the Settlement Agreement was 27 supposed to deal with the settlement of possible claims and litigation between me and 28 Mr. Trump (not between me and Essential Consultants). -1DECLARATION OF OF STEPHANIE CLIFFORD IN SUPPORT OF PLAINTIFF'S OPPOSITION TO DEFENDANT ESSENTIAL CONSULTANTS, LLC'S MOTION TO COMPEL ARBITRATION Case 2:18-cv-02217-SJO-FFM Document 30-1 Filed 04/09/18 Page 3 of 23 Page ID #:523 1 I declare, under penalty of perjury and under the laws of the United States of 2 America, that the foregoing is true and correct. I have executed this declaration at Los 3 Angeles, California on April _8_, 2018. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2- DECLARATION OF OF STEPHANIE CLIFFORD IN SUPPORT OF PLAINTIFF'S OPPOSITION TO DEFENDANT ESSENTIAL CONSULTANTS, LLC'S MOTION TO COMPEL ARBITRATION Case Document 30-1 Filed 04/09/18 Page 4 of 23 Page ID #:524 EXHIBIT 1 Case 2:18-cv-02217-SJO-FFM Document 30-1 Filed 04/09/18 Page 5 of 23 Page ID #:525 CONFIDENTIAL SETTLEMENT AGREEMENT AND MUTUAL RELEASE; ASSIGNMENT OF COPYRIGHT AND NON-DISPARAGMENT AGREEMENT 1.0 THE PARTIES 1.1 This Settlement Agreement and Mutual Release (hereinafter, this "Agreement") is made and deemed effective as ofthe _"'l ~ day of October, 2016, by and between "EC, LLC" and/or DAVID DENNISON, (rmr;;n the one part, and PEGGY PETERSON, (PP), on the other part. ("EC, LLC," "DD" and "PP" are pseudonyms whose true identity will be acknowledged in a Side Letter Agreement attached hereto as "EXHIBIT A") This Agreement is entered into with reference to the facts and circumstances contained in the following recitals. 2.0 RECITAU 2.1 Prior to entering into this Agreement, PP came into possession of certain "Confidential Information" pertaining to DD, as more fully defined below, only some of which is in tangible fom1, which includes, but is not limited to information, certain still images and/or text messages whlch were authored by or relate to DD (collectively the ''Property", each as more fully defined below but whlch all are included and attached hereto as Exhibit "l" to the Side Letter Agreement). 2.2 (a) PP claims that she has been damaged by DD's alleged actions against her, including but not limited to tort claims proximately causing injury to her person and other related claims. DD denies all such claims. (Hereinafter "PP Claims"). (b) DD claims that he has been damaged by PP's alleged actions against him, including but not limited to the alleged threatened selling, transferring, licensing, publicly disseminating and/or exploiting the Images and/or Property and/or other Confidential Infonnation relating to DD, all without the knowledge, consent or authorization of DD. PP denies all such claims. (Hereinafter "DD Claims"), (c) The PP Claims and the DD Claims are hereinafter collectively referred to as "The Relensed Claims." 2.3 DD desires to acquire, and PP desires to sell, transfer and tum-over to DD, any and all tangible copies oftbe Property and any and all physical and intellectual property rights in and to all of the Property. As a condition of DD releasing any claims against PP related to this matter, PP agrees to sell and transfer to DD all and each of her rights in ond to such Property. PP agrees to deliver each and every existing copy of all tangible Property to DD (and permanently delete any electronic copies that can not be transferred), and agrees that she shall not possess, nor directly nor indirectly disclose convey, transfer or assign Property or nny Confidential Information to any Third Party, as more fully provided herein. 2.4 It is the intention of the Parties that Confidential Information, as defined herein, shall remain confidential as expressly provided hereinbelow. The Parties expressly acknowledge, agree and understand that the Confidentiality provisions herein and the l Page 0 Case 2:18-cv-02217-SJO-FFM Document 30-1 Filed 04/09/18 Page 6 of 23 Page ID #:526 representations and warranties made by PP herein and the excoution by her of the Assignment & Transfer of Copyright are at the essence of this Settlement Agreement and are a material inducement to DD's entry into this Agreement, absent which DD would not enter into this Agreement DD ex:pecm and requires that PP never communicate with him or his family for any reason whatsoever. 2.5 The Parties wish to avoid the iline, expense, and inconvenience of potential litigation, and to resolve any and all disputes and potential legal claims which exist or may exist between them, as of the date of this Agreement including but not limited to the PP Claims and/or the DD Claims. The Parties agree that the claims released include but are not limited to DD's Claims against PP as relates to PP having allowed, whether intentionally, unintentionally or negligently, anyone else other than those listed in section 4.2 herein below to become aware of the existence of and content of the Property, to have gained possession of the Property, and to PP' shaving allegedly engaged in efforts to disclose, disseminate and/or commerciaUy exploit the Images and/or Property and/or Confidential Information, and any harm suffered by DD therefrom. The Parties agree that the claims releMed include but are not limited to PP's Claims against DD as relates to DD having allowed, whether intentionally, unintentionally or negligently, anyone else to have interfered with PP's right to privacy or any other right that PP may possess. 2.6 These Recitals are essential, integral and material terms of this Agreement, and this Agreement shnll be construed with respect thereto. The Parties enter into this Agreement in consideration of the promises, covenants and conditions set forth herein, and for good and valuable consideration, the receipt of which is hereby acknowledged. It is an essential element of this Settlement Agreement that the Parties shall never directly or indirectly communicate with each other or attempt to contact their respective families. This matter, the existence of this _Settlement Agreement and its tetms are strictly confidential. NOW, THEREFORE, the Parties adopt the foregoing recitals as a statement of their intent and in consideration of the promises and covenants contained herein, and further agree as follows: Ill Ill Ill pa g C 1 Case 2:18-cv-02217-SJO-FFM Document 30-1 Filed 04/09/18 Page 7 of 23 Page ID #:527 3.0 SETTLEMENT TERMS 3.0.1.1 EC, LLC SHALL PAY TO PP $130,000.00 U.S.D. AS FOLLOWS: 3.0.1.1.1 $130,000.00 USO shall be wired into PP's Attorney's Attorney Client Trust Account on or before 1600 hrs. PST on 10/27/16.(Hercinafter "Gross Settlement Amount"). PP's Attorney's Wiring Instructions are: Bank Name: Bank Address: ABA Routing No: Beneficiary Account Name: Beneficiary Account No; Beneficiary Address: SWIFT Code: 3.0.1.1.2 3.1 City National Bank 8641 Wilshire Blvd. Beverly I-Illls, CA 90211 122016066 Keith M. Davidson & Associates, PLC, Attomey Client Trust Acco,mt 600106201 8383 Wilshire Blvd. Suite 510 Beverly Hills, CA 90211 CINA US6L Keith M. Davidson, Esq. shall receive the Gross Settlement Amount in Trust. No portion of the GToss Settlement Amount shall be disbursed by Attorney for PP unless and until PP executes all required Settlement Documents. ~ g s & Obligations by PP. PP will do each of the following by 11/01/16: (a) PP shall execute this Agreement and return a signed copy to DD: (b) PP shall transfer and/or assign any and all rights in and to the Property to DD (as set forth hereinbelow), and execute an Assignment & Transfer of Copyright, in the forrn attached hereto, and return a signed copy of same to DD's counsel; (c) PP shall deliver to DD every existing copy of all tangible Property. PP shall completely divest herself of any and all artistic media, impressions, paintings, video images, still images, e-mail messages, text messages, Instagram message, facebook posting or any other tYPe of creation by DD. PP shall transfer all physical, ownership and intellectual property rights to DD; (1) PP shall deliver to DD any and all non-privileged correspondence concerning or related to DD between PP and any 3rd party. (d) PP shall not, at any time from the date of this Agreement forward, directly or indirectly disclose or disseminate any of the Property or any Confidential Information (including confirmation of the fact that it exists or ever existed, and/or confirming any rumors as to any such existence) to any third party, as more fully provided herein. (e) PP shall provide to DD (to the extent not already done so and set forth in paragraph 4.2 hereinbelow), summary details disclosing to whom PP (or anyone else on PP's be alf) disclosed, displayed to, disseminated, transferred to, provided a copy to, and/or -~~~ Page2 Case 2:18-cv-02217-SJO-FFM Document 30-1 Filed 04/09/18 Page 8 of 23 Page ID #:528 distributed, sold, licensed or otherwise sought to have commercially exploi4 the Itnages and/or Property and/or any Confidential Information. PP shall provldt to DD's counsel the names and contact information of (f) each an~ any perso~ ~r entities who: (1) PP has provided to or who otherwise obtained possession of the original I\D.d/or any copies of any of the Images and/or any Property, if any, (ii) to whom PP has scanned the Itnages and/or any Property at any time and (iii) to whom pp knows ~ad, has or ?18Y potenti~ll~ have possession of a copy of the hnages and/or any Property at any t:une, including but not limited to the present time (and specify with detail to which of the referenced categories (i.e., possession, shown, past, present, etc.) any name corresponds, the name so relates). . ~g) , PP sball_Provide to DD's counsel copies of any agreements and/or other d~umentation m PP s possession, custody or control, if any, regarding (e) and/or (f) above, th.at ev1dtnces who bas or may have been provided a copy of any of the Property. 3.2 Transfer of Property Rights to DD. In further consideration for the promises, covenants and consideration herein, PP hereby transfers and conveys to DD all of PP's respective rights, title and interest in and to the Property, and any and all physical and intellectual prope~ rights related thereto. Without limiting the generality of the foregoing, PP does hereby sell, ass1gn, and transfer to DD, his imccessors and assign&, throughout the universe in perpetuity, all of PP's entire right, title, and interest (including, without limitation, all copyrights and all extensions and renewals of copyrights), of whatever kind or nature in and to the Property, without reservation, condition or limitation, whether or not such rights are now known, recognized or contemplated, and the complete, unconditional and unencumbered ownership and all possessory interest and rights in and to the Property, which includes, but is not limited to the originals, copies, negatives, prints, positive, proof sheets, CD·roms, DVD-roms, duplicates, outtake and the results of any other means of ex.bi biting, reproducing, storing, recording and/or archiving any of the Property or related material, together with all rights of action and claims for damages and benefits arising because of any infringement of the copyright to the Property, and assigns and releases to DD any and all other proprietary rights and usage right, PP may own or hold in the copyright and/or Property, or any other right in or to the Property. PP assigns and tr11I1Sfers to DD all of the rights herein granted, without reservation, condition or limitation, and agrees that PP reserves no right of any kind, nature or description related to the Property and contents therein. Notwithstanding the foregoing, if any of the rights herein granted are robject to tormination under section 203 of the Copyright Act, or any similar pi:ovisions of the Act or subsequent amendments thereof, PP hereby agrees to re-grant such rights to DD immediately upon such termination. All rights granted herein or agreed to be granted hereunder shall vest in DD immediately and shall remain vested in perpetuity. DD shall have the right to freely assign, seU. transfer or destroy the Property as he desires. DD shall have the right to register sole copyright in and to any of the Property with the US Copyright Office. DD Bhall also have the right, in respect to the Property, to add to, subtract from, change, arrange, revise, adapt, into ally and all form of expression or tangible communication, and the right to combine any of the Property with any other works of any kind and/or to create derivative works with any of the Property and to do with it as she so deems. To the fullest extent allowable under the applicable law, PP ~ l irrevocably waive and assign to DD any of PP's so-called "m~ral rights" or ~dr?it moral" (laws for the protection of copyrights outside of the United States), 1f any, or any similar rights under any principles of law which PP may now have or later have in the Property. With and in furtherance of the above, PP agrees to and shall execute and deliver to DD an .70 ~ Pnge 3 --4ii Case 2:18-cv-02217-SJO-FFM Document 30-1 Filed 04/09/18 Page 9 of 23 Page ID #:529 "Assignment & Transfer of Copyright'', in the form attached hereto as Exhibit "B". For greater certainty the foregoing assignment shall be applicable worldwide. 3.2. l Notwithstanding the foregoing paragraph 3.2, and without in anyway limiting or diminishing from the full 'lransfer llnd 118Signment of rights therein without reservation, the Parnes undersbmd the purpose of the transfer of rights is to provide DD the fullest possible ability and remedies to prevent and protect against any publication and/or dissemination of the Property. 3.3 Delivery of the Property to DD. Concurrently upon execution of this Agreement, PP, as applicable, shall deliver to DD, by delivery to his counsel herein, all of the Property which is embodied in tangible form (all originals and duplicates), whether documents, canvaases, paper art, digital copies, letters, prints, electronic data, films, tapes, CD-Roms, DVD-Roms, Images recording tapes, photographs, negatives, originals, duplicates, contact sheets, audio recordings, Images recordings, magnetic data, computerized data, digital recordings, or other recorded medium or any other fonnat of embodying information or data. Without limiting t.he genem.lity of the foregoing, such tangible Property shall include all documents as defmed by California Evidence Code §250 whieh contain any of the Property. PP represents and warrants that the materials delivered pursuant to the terms of this Paragraph 3.3 comprise the totality of all existing originals and duplicates of all Property in any tangible form, whether within their possession, custody or control, and including otherwise (and that PP knows of no other copies or possible or potential copies not in PP's possession and control and delivered pursuant to this paragraph), and that upon such delivery to DD, PP shall not maintain possession, custody or control of any copy of aJI or any portion of any tangible Property. The Property Delivered under this Paragraph shall become Exhibit 1 to the Side Letter Agreement. For avoidance of any doubt, PP, nor her attorney are entitled to retain possession of said Property after execution of this Agreement. The retention of said Property by PP is a material breach of this agreement. 3.3.1 This Agreement i$ conditioned on PP's compliance with each and every term of the Settlement Agreement including Paragraph 3.3 !IDJi the personal verification by DD or his attorney of the Images and that the Images are comprised of and captures the content previously represented to his counsel to exist and be captured therein (i.e., text niessages between PP and DD)), all of which terms are essential and material. 4.0 CONFIDENTIALITY & REPRESENTATIONS & WARRANTIES, 4.1 Definition of Confidcnyal lllfonpation. "Confidential Information" means and includes each and all of the following: . (a) AU Intangible information pertaining to DD and/or hia family, (including but not limited to his childron or any alleged children or any of his alleged sexual partners, alleged sexual actions or alleged sexual conduct or related matters ),and/or friends learnedi obtained, or acquired by PP, including without limitation infonnation contained in letters, e~ mails, text messages, agreements, documents, audio or Images recordings, electronic data, and photographs; (b) All intangible information pertaining to the existence and content of the Property; l1 a gc 4 I I I Case 2:18-cv-02217-SJO-FFM Document 30-1 Filed 04/09/18 Page 10 of 23 Page ID #:530 (c) All intangible private information (i.e., information not generally available to and/or known by the general public) relating lllldlor pertaining to DD, including without limitation DD's business information, familial information, any of his alleged sexual partners, alleged sexual actions or alleged sexual conduct, related matters or paternity information, legal matters, con1ractual infonnation, personal infonnation, private social life, l.irestyle, private conduct, (all information/items in 4.1 "(a)", 4'(b)" and "(o)" are sometimes collectively referred to as,, "Intangible Confidential Information"); (d) All tangible materials of any kind containing information pertaining to DD learned, obtained, participated or acquired by PP, including without limitation letters, agreements, documents, audio or Images recordings, electronic data, and photographs, canvas art, paper art. or art in any other form on any media. The Images and Photos and all information/items in 4. l(d) are collectively referred to as, the "Property" and/or the ''Tangible Confidential Information"); 4.2 PP's Representations & Warranties Regarding Prior Disclosures of Tangible Confidential InformatiQn. PP represents and warrants that prior to entry into this Agreement, PP has directly or indirectly disclosed any Tangible an/or Intangible Confidential Information (i.e., any of the Property), to any Third Party, including without limitation disclosm-e or indirect disclosure of the content of such Confidential Information in tangible form, other than the following persons or entities to whom PP has made such prior disclosures (herein ''PP Disclosed Individuals/Entities''): a) b) c) d) e) t) g) h) i) PP shall not be responsible for e.ny subsequent public disclosure of any of the Confide11tial Information (a) attributable~ to each of them; and/or (b) not disclosed hereinabove as a previously disclosed PP Disclosed Individuals/Entities, and any such disclosure shall be deemed a breach of this Agreement by PP. For greater clarity, PP must not induce, promote or actively inspire anyone to disclose Confidential Information. r a gc 5 Case 2:18-cv-02217-SJO-FFM Document 30-1 Filed 04/09/18 Page 11 of 23 Page ID #:531 4.3 Representations & Warranties and Agreements. (a) Representations & Warranties and A,ueements By DQ. The following agreements, warranties and representations are made by DD as material inducements to PP to enter into this Agreement, and each Party acknowledges that she/he is executing this Agreement in reliance thereon: (b) DD warrants and represents that, as relates to or in connection with any of PP's attempts to sell, exploit and/or diqsemfnate the Property to the date of this Agreement. DD and his counsel will refrain (i) from pursuing any civil action against PP, and/or (ii) absent a direct inquiry from law enforcement, from disclosing PP's name to the authorities. Notwithstanding the foregoing, if DD is informed that or should or if it is believed that either of PP has possession, custody and/or control of any of the Property after the date of this Agreement and/or transferred any copies to any Third Party, and/or it is believed that any of PP, whether directly or indirectly, intends the release, use, display, dissemination, disclosure or exploitation, whether actual, threatened or rumored, of any for the Property, then DD and his counsel shall be entitled to, at DD's sole discretion, (i) contact the respective member of PP, including with legal demands and related statements of liability and legal action, and/or (ii) advance a civil action against the respective member of PP, and/or (ill) disclose any of PP's name to the authorities. mwr 4.3.2 Representations & Warranties and Agreements By Pf. The following agreements, warranties and representations are made by PP as material inducements to DD to enter into this Agreement, without which DD would not enter into this Agreement and without which DD would not agree to pay any monies whatsoever hereunder, and with the express acknowledgment that DD is executing this Agreement in reliance on the agreements, warranties, and representations herein which are at the essence of this Agreement, including, the following: (a) PP agrees and warrants and represents that PP will pennaneDtly cease and desist from any efforts to and/or attempting to and/or engaging in and/or arranging the use, License, distribution, dis!!emination or sale of any of the Confidential Information 1111d/or Property, including any Tangible and/or Intangible Confidential information created by or relating to DD; (b) PP agrees and warrants and represents that PP will pennanently cease and desist from any posting or dissemination or display of the Confidential Information, Tangible and/or Intangible Confidential information created by or relating to DD and/or Property, including the Images (including, but not limited to, to any form media outlet, on any blog or posting board, on the Internet., or otherwlse); (c) PP agrees and warrants and represents that PP will pennanently cease and desist from using or disseminating or disclosing any information to any Third Persons (including, but not limited to, to any media outlet, on any blog or posting board, on the Internet. or otherwise) about any details of or as to the contents of the Confidential Information, Tangible and/or Intangible Confidential information created by or relati.ng to DD and/or Property, including any Text Messages, and/or as to any other personal details of or about or pertaining to DD and/or his family and/or friends and/or social interactions; (d) PP agrees and warrants and represents that PP will permanently cease and desist from and will not, at any time, make any use of or reference to the name, image or likeness ~ Page6 ~ Case 2:18-cv-02217-SJO-FFM Document 30-1 Filed 04/09/18 Page 12 of 23 Page ID #:532 of DD in any manner whatsoever, including without limitation, through any print or electronic media of any kind or nnture for any purposo, including, but not limited to, on any websites; (e) PP agrees and warrants and represents that any and all existing copies of the Images, Text Messages and any Property (other than as expressly specified in paragraphs 3.2 and 3.3 herein) have been turned over and provided to counsel; and PP further warrants and represents that the only copy of the Images and Property that has ever existed, at any time, has been turned over to DD's counsel pursuant to this Agreement, and the Images and any Property has never been transfcned to or existed in any other form, including not in electronic form, nor on any computer, or electronic device and other storage media; (t) PP warrants and represents that PP has not provided any copies, whether ha.rd-copy or electronic copies, of the Property to anyone other than as specified in paragraph 4.2 herein); (g) PP warrants and represents that the information PP is obligated to provide pursuant to the tellDS herein will he complete and truthful; (h) PP .warrants and represents that PP has not omitted or withheld any information that PP i$ obligated to provide pursuant to the tenns herein; (i) PP warrants and represents that PP has not contracted to earn and/or collect any monies as compensation from the sell, license and/or any other exploitation of the Images and/or any Property and/or any Confidential Information, Tangible and/or Intangible Confidential information created by or relating to DD nor any monies a.'I compensation or an advance for any efforts to sell, license and/or any other exploitation of the Images and/or any Property and/or any Confidential Infonnation or any Tangible and/or Intangible Confidential information created by or relating to DD; (j) PP warrants and represents that PP has not assigned nor transferred, either in whole or in part. any purported righLq in or to the Images and/or any Property to any other person or entity, other than to DD pursuant to this Agreement. 4.3.3 Agreement By PP Not to Disclose/Use Confidential InfonnatiQU, Tangible and/or Intangible Confidential information created by or relating to DD. As further mnterlal inducements for DD to enter into this Agreement, PP agrees, represents and warrants that she shall not directly or indirectly, verbally or otherwise, publish, disseminate, disclose, post or cause to be published, disseminated, disclosedi or posted (herein "disclose"), any Confidential Information or Tangible and/or Intangible Confidential information created by or relating to DD to any person, group, firm or entity whatsoever, including, but not limited to, fa.tnily members, mends, associates, journalists, media organizations, newspapers, magazines, publications, television or radio stations, publishers, databases, biogs, websites, posting boards, and any other enterprise involved in the print, wire or electronic media, including individuals. working directly or indirectly for, or on behalf of, any of said persons or entities ("Third Parties" and/or Third Party''). In no event shall PP be relieved of suoh party's confidentiality obligations herein by virtue of any breach or alleged breach of this Agrer:ment. In no event shall any dispute in connection with this Agreement relieve PP of her confidentiality obligations arising pursuant to this Agreement, and any disclosure of Confidential Infonnation and/or Tangible and/or l b l e Confidenwtl lnfumu,tion croated by or relatlng ro DD m ennnectioo with any suoh Page 7 -.£66 Case 2:18-cv-02217-SJO-FFM Document 30-1 Filed 04/09/18 Page 13 of 23 Page ID #:533 proceeding or dispute shall constitute a breach of this Agreement. PP shall use their best efforls to prevent the unauthorized disclosure of Confidential Information in connection with any such proceeding or dispute. 4.3.4 Any direct or indirect disclosure of Confidential Information or Tangible and/or Intangible Confidential infonnation created by or relating to DD to any Third Party by PP and/or any of her representatives, heirs, agents, children, family members, relatives , confidents, advisors, employeet1, attorneys, transferors, transferees, successors or assigns, and/or any friend of any of PP (collectively "PP Group'~, after the date ofthis Agreement, shall be deemed a disclosure by PP in breach of the terms of tbJs Agreement, entitling the non-breaching Party to all rights and remedies set forth herein. 4.3.5 PP separately and further warrants and represent that, prior to entering into this Agreement, that she has not written, published, caused to be published, or authorized the writing, publication, broadcast, transmission or public dissemination of any interview, article, essay, book., memoir, story, photograph, film, script, Images tape, biography, documentary, whether written, oral, digital or visual, whether fictionalized or not. about the opposing Party to this Agreement or their family, whether truthful, laudatory, defamatory, disparaging, deprecating or neutral, which discloses any Confidential Information and/or which includes any description or depiction of any kind whatsoever whether fictionalized or not, about any Party to this agreement or their respective family, other than as expressly disclosed by PP hereto in writing and as set forth herein in paragraph 4.2 above. 4.3.6 Agreement By PP Not to Dispafd~ DD. PP hereby irrevocably agrees and covenants that she shall not. directly or lndirectly, publicly disparage DD. nor write, pubJ..lsbi cause to be publishedi or authorize, consult about or with or otherwise bo involved in the writing, publication, broadcast, transmission or dissemination of any book, memoir, letter, story, photograph, film, script, Images, interview, article, essay, biography, diary, journal, documentary, or other written. oral, digital or visual account or description or depiction of any kind whatsoever whether fictionalized or not, about DD or his family, whether truthful, laudatory, defamatory, disparaging, deprecating or neutral. PP further warrants and represents that PP bas not and will not enter into any written or oral agreement with any third party purportedly requiring or obligating PP to do so. Fore greater clarity PP will never discuss with anyone the contents of this Settlement Agreement, nor will she voluntarily confirm the existence of this Settlement Agreement. 4.4 Disclosure Of Confidential Information Is Prohibited: The Parties to this Agreement hereby recognize and agree that substantial effort and expense havo been dedicated to limit the efforts of the press, other media, and the public to learn of personal and business affairs involving DD. PP further acknowledges that any future disclosure of Confidential Infonnation to any Third Party would constitute a serious and material breach of the terms of this Agreement., and shall constitute a breach of trust and confidence, invasion of privacy, and a misappropriation of exclusive property righw, and may also co11Stitute fraud and deceit. Some of the Confidential Infonnation may also constitute and include proprietary business information and trade secrets which have independent economic value. The Parties hereto acknowledge that any unauthorized use, dissemination or disclosure of Confidential Information, or the fabrication and dissemination of false and/or misleading information, about DD would result in irreparable injury to him, and would be injurious to a reasonable person, and/or would constitute an inj us violation of the right of privacy or publicity, and/or would be injurious to his business, Page 8 ~ Case 2:18-cv-02217-SJO-FFM Document 30-1 Filed 04/09/18 Page 14 of 23 Page ID #:534 profession, person, family and/or career. The Parties acknowledge that substantial and valuable property rights and other proprietary interests in the exclusive possession, ownership and use of Confidential Information, and recognfa.es and acknowledges that such Confidential Infonnatlon is a proprietary, valuable, special and unique asset which belongs to DD and to which the PP has no claim of ownership or other interest. 4.4. l DiscloSUI£s Permitted By PP. Notwithstanding the foregoing, PP shall only be pennitted to disclose Confidential Information to another petson or entity only if compelled to do so by valid legal process, including without limitation a subpoena duces tecwn or similar legal compulsion, provided that PP shall not mnke any such disclosure unless PP has first provided DD with notice of such order or legal process not less than ten (10) days in advance of the req'Uired date of disclosure pursuant to the Written Notice provisions set forth hereinhelow, providing DD with an opportunity to intervene and with full and complete cooperation should she choose to oppose such disclosure. PP agrees that if the valid legal process can be stopped by her consent or at her behest then PP shall agree to use best efforts to avoid the disclosure of the Confidential Infonnation. 5.0 REMEDIES 5.1 DD's Remedjes for Breach of Agreement. Each breach or threatened breach (e.g., conduct by PP reflecting that said person intends to breach the Agreement), including without litnitation by breach of any representation or warranty, by failing to deliver t.o DD all tallgible Property es required, by the disclosure or threatened disclosure of any Confidential Information to any Third Party by PP (herein "Prohibited Co1IUDunication"), or otherwise, shall render PP liable to DD for any and all damages and iajwics incWTed as a result thereof, including but not limlted to the following, all of which rights and retnedies shall be cumulative: S, 1.1 Disgorgement of Monies: In the event an Arbitrator detennines there has been a breach or threatened breach of this Agreement by PP, PP shall be obligated to account to, and to disgorge and tum over to DD any and all monies, profits, or other consideration, or benefits, which PP, or anyone on PP's behalf or at PP's direction, directly or indirectly derive from any disclosure or exploit.ation of any of the Confidential Information; !!!li! 5.1.2 Liquidated Damages: PP agrees that any breach or violation of this Settlement Agreement by either of PP individually or the PP Group by bis/her/their unauthorized disclosure of any of the Confidential Information (as defined in paragraphs 4.l(a), (b), (o), and (d)) to any Third Party, and/or any unauthorized exploitation or prohibited use of the same, and/or by the breach of and/or by any false representations and warranties set forth in this Agreetnent, and/or any public disparagementofDD by PP (collectively, the "LD Breach Terms''), shall result in substaDtial damages and injury to DD, the precise amount of which would be extremely difficult or impracticable to determine, even after the Parties have made a mssonable endeavor to estimate fair compensation for such potential losses and damages to DD. Therefore, in addition to disgorgement of the full a.mount of all monies or other consideration pursuant to paragraph 5.1.2, in the event an Arbitrator determines there haq been a breach of the LD Breach Terms of this Agreement by PP individually or the PP Group, PP shall also be obligated to pay, and agree to pay to DD the sum of One-Million Dollars ($1,0-00,000.00 as a reasonable and fair amount of liquidated damages to compensate DD for any loss or damage {;£ Page 9 ~ Case 2:18-cv-02217-SJO-FFM Document 30-1 Filed 04/09/18 Page 15 of 23 Page ID #:535 resulting from~ breach, it being understood that the Liquidated damages calculation is on a per item basis. The Parties agree tltat such sum bears a reasonable and proximate relationship to the actual damages which DD will or might suffer from each breach of the terms of this Agreement and that this amount is not a penalty. Alternatively, at DD's sole discretioni DD may seek to recover actual damaw proximately caused by each such breach, according to proof, Any other breaches not a LD Breach Terms shall be subject to a claim for actual damages according to proof; furthermore, any monies held in Trust by PP's Attorney shall be frozen and shall not be disbursed to PP until the Arbitrator finally resolves the allegation of Breach. 5.1.3 Injut1ctiye Relief. PP acknowled~es and agrees that any unauthorized disclosure to Third Parties of any Confidential Information will cause irreparable harm to DD, which damages and injuries will most likely not be measurable or susceptible to calculation. PP further acknowledges and agrees that any breach or threatened breach of this Agreement due to the Ull.lluthorized disclosure or threatened disclosure by PP to Third Parties, of any Confidential Information shall entitle DD to inlmed.iatcly obtain, either from the Arbitrator and/ or from any other court of competent jurisdiction, an ex parte issuance of a restraining order and preliminary injunction or other similar relief (herein "Injunctive Relief') without advance notice to any of PP, preventing the disclosure or any further disclosure of Confidential Information protected by the terms hereof, pending the decision of the Arbitrator or Court. The Parties further acknowledge and agree that in connection with any such proceeding, any Party may obtain from the Court or Arbitrator on an ex partc application or noticed motion without opposition, an order sealing the file in any such proceeding, and the Parties stipulate to the factual and legal basis for issuance of an order sealing the file in any such proceedings. The rights and remedies set forth in this Injunctive Relief Section are without prejudice to any other rights or remedies, legal or equitable, that the Parties may have as a result of any breach of this Agreement. 5.2 Dispute Reso)utiQn. In recognition of the mutual benefits to DD and PP ofa voluntary system of alternative dispute resolution which involves binding confidential arbitration of all disputes which may arise between them, it is their intention and agreement that any and all claims or controversies arising between DD on the one hand, and PP on the other hand, shall be resolved by binding confidential Arbitration to the greatest extent permitted by law. Arbitration shall take place before JAMS ENDISPUTB ("JAMS") pursuant to JAMS Comprehensive Arbitration Rules and Procedures (including Interim Measures) ("JAMS Rules") and the law selected by DD, (such selection shall be limited to either, California, Nevada or Arizona), or before ACTION DISPUTE RES0LU110N SERVICES ("ADRS') pursuant to the ADRS Rules (including Interim Measures) and the law selected by DD (whichever the claimant elects upon filing on arbitration), in a the location 11electcd by DD, and will be heard and decided by a sole, neutral arbitrator ("Arbitrator') selected either by agreement of the Parties, or if the Parties are unable to agree, then selected under the Rules of the selected ttrbitration service. The costs and fees associated with any Arbitrator and/or Arbitration service shall be split equally among the parties to any such dispute. The Parties shalt have the right t.o conduct discovery in accordance with the California Code of Civil Procedure Section 1283 .05 et. seq. or any similar provision existing in the jurisdiction selected by DD and the written discovery requests and results of discovery shall be deemed to constitute Confidential Infonnation. The Arbitrator shall have the right to impose all legal and equitable remedies that would be a-vailable to any Party before any governmental dispute resolution forum or court of competent jurisdiction, including without limitation temporary, preliminary and permanent injunctive relief, compematory damages, liquidated damages, accounting, disgorgement, specific perfornum.ce, attorneys fees and costs, /tl: P fl g C 10 Case 2:18-cv-02217-SJO-FFM Document 30-1 Filed 04/09/18 Page 16 of 23 Page ID #:536 and punitive damages. It is understood and agreed that each of the Parties shall bear his/its own attorneys' fees, expert fees, consulting fees, and other litigation costs (if any) ordinarily associated with legal proceedings taking place in a judicial forum, subject to the Arbitrator's reassessment in favor of the prevailing party to the extent peI1I1itted by law. Each of the Parties understands, acknowledges and agrees that by agreeing to arbitration as provided herein, each of the Parties Is giving up any right that he/she/it may have to a trial by judge or jury with regard to the matters which are required to be submitted to mandatory and blndin& Arbitration pursuant to the terms hereof, Each of the Parties further undentands, acknowledges and agrees that there is no right to an appeal or a review of an Arbitrator•, award as there would be a right of appeal or review of a judge or jury's decision, 6.0 MUTUAL RELEASES 6. 1 Bx.cept for the rights and obligations of the Parties set forth in this Agreement, OD, for Wmself, and each of his representatives, agents, assigns, heirs, partners, companies, affiliated companies, employees, insurers and attorneys, absolutely and forever releases and discharges PP, individually, and all of PP's heirs, and PP's attorneys, and each of them ("PP Releasees"), of and from any and all claims, demands, damages, debts, liabilities, accounts, reckonings, obligations, costs (including attorney's fees), expenses, liens, actions and causes of actions of every kind and nature whatsoever, whether known or unknown. from the beginning of time to the effective date of this Agreement, inclucling without limitation any and a1I matters, facts, claims and/or defenses asserted or which could have been asserted in the Matterj or which could have been asserted in any other legal action or proceeding, except as may be provided herein {the "DD Released Claims"). 6.2 Except for the rights and obligations of the Parties set forth in this Agreement, PP, for herself, and her representatives, agents, assigns, heirs, partners, companies, affiliawd companies, employees, insurers and attorneys, absolutely and forever release and discharge DD, individually, and each ofhis representatives, agents, assigns, heirs, partners, companies, affiliated companies, subsidiaries, employees, attorneys, successors, insurers, and each of them ("DD Releasees"), of and from any and all claims, demands, damages, debts, liabilities, accounts, reckonings, obligations, costs (including attorney's fees), expenses, liens, actions and causes of actions of every kind and nature whatsoever, whether known or unknown, from the beginning of time to the date of this Agreement, including without limitation any and all matters, facts, claims and/or defenses asserted or which could have been asserted in the Action, or which could have been asserted in any other legal action or proceeding (the "PP Released Claims") .. 6.3 The .subject matt.er referred to in paragraphs 6.1 and 6.2, above {i.e., the DD Released Claims and PP Released Claims), are collectively referred to as the "Released Matters." 6.4 The Parties hereto, and each of them, hereby warrant, represent and agree that each of them is fully aware of §1542 of the Civil Code of the State of California, which provides as follows: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the rele88e, which ff known by him must have materially affected his settlement with the debtor." tf!--- Pugcll Case 2:18-cv-02217-SJO-FFM Document 30-1 Filed 04/09/18 Page 17 of 23 Page ID #:537 The Parties, and each of the~ voluntarily waive the provisions of CaUlornia Civil Code § 1542, and any other similar federal and state law as to any and all claims, demands, causes of action, or charges of every kind and nature whatsoever, whether known or unknown, suspected or unsuspeded. 6.4.1 For avoidance of any doubt, by virtue of thls Settlement and this Settlement Agreement, the parties hereby waive llllY unknown clllim.'1 against each other individunlly, and each of their representatives, agents, assigns, heirs, partners, companies, affiliated companies, subsidiaries, employees, attorneys, successors, insurers, end each of them. 6.5 Each of the Parties hereto acknowledges and agrees that this Agreement constitutes a settlement and compromise of claims ond defenses in dispute, and shall not be construed in any fashion as an admission of liability by any party hereto. 7,0 CONFIDENTIAIJTY OF TIDS AGREEMENT 7.1 The Parties, respectively, shall not to disclose the terms of this Agreement, either directly or indirectly, to the media or to anyone else other than their respective attorneys and representatives and/or as may be required by law. PP may not comment or make any press releases or otherwise discuss the resolution of the subject of this Agreement. 8.0 MISCELLANEOUS TERMS 8.1 Entire Agreement. This Agreement constitutes the entire agreement and understanding concerning the Released Matters hereof between the Parties hereto and supersedes any and all prior negotiations and proposed agreement and/or agreements, written and/or oral, between the Parties. Each of the Parties hereto acknowledges that neither they, nor any other party, nor any agent or attorney of any other party has made any promise, representation, or warranty whatsoever, expressed or implied, written or oral, which is not contained herein. concerning the subject matter hereof, to induce it to execute this Agreement. and each of the Parties hereto acknowledges that she/he has not executed this Agreement in reliance on any promise, representation, and/or warranty not contained herein. This Agreement shall be binding on and inure to the benefit of the Parties, the Relcasees, and each of their respective successors and assigns and designecs. 8.2 RD's Election of either California, Nevada or Arizona Law & Venue. This Agreement and any dispute or controversy relating to this Agreement, shall in all respects be construed, interpreted, enforced and governed by the laws of the Sttlte of California, Arizona or Nevada at DD's election. Attorneys' Fees in the case ofa Dispute. In the event of any dispute, action, proceeding or controversy regarding the existence, validity, interpretation. performance, enforcement, claimed breach or threatened breach of this Agreement, the prevailing party in any resulting arbitration proceeding and/or court proceeding shall be entitled to recover as an element of such Party's costs of suit, and not as damages, all attorneys' fees, costs and expenses incurred or sustained by such prevailing Party in connection with such action, including, without limitation, legal fees and costs. Pagcl2 Case 2:18-cv-02217-SJO-FFM Document 30-1 Filed 04/09/18 Page 18 of 23 Page ID #:538 8.3 AttomeyFges and Costs in Formation of this Agreement. The Parties shllll each bear their own C-Osts, expert fees, attorneys' fees and other fees incurred in connection with the creation this Settlement Agreement. 8.4 Waivers: Modificatiol). This Agreement cannot be modified or changed except by written instrument signed by all of the Parties hereto. No waiver of any of the I)rovisions of this Agreement shall be deemed to constitute a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the party making the waiver. 8.5 Ss;qpe of Provlsio0,~/Severabllity/Headings. None of the Parties hereto shall be deemed to be the drafter of this Agreement, but it sba11 be deemed that this Agreement was Jointly drafted by each of the Parties hereto. Should any provision of this Agreement be found to be ambiguous in any way, such ambiguity shllll not be resolved by construing this Agreement in favor of or against any party herein. but rather construing the tem1s of this Agreement as a whole according to their fair meaning. In the event that any provision hereof is deemed to be illegal or unenforceable, such a determination shall not affect the validity or enforceability of the remaicing provisions thereof, all of which shall remain in full force and effect. Notwithstanding the foregoing, if a provision is deeme