Continuing his the best-defense-is-a-multipronged-offense legal strategy, Bill Cosby now is going after rape accuser Andrea Constand, her mother, her lawyers and the parent company of the National Enquirer in a breach-of-contract suit.
“Despite the strong and unambiguous provisions in the Confidential Settlement Agreement, Defendants repeatedly disclosed information that they promised to keep secret,” said Cosby’s redacted complaint that was filed in federal court late last night (read it here). Using the 2015 criminal charges laid against him as wedge, Cosby is going after all the parties for “unjust enrichment, including but not limited to return of consideration paid under the 2006 Confidential Settlement Agreement.”
“As a result of Andrea Constand’s breaches of the 2006 Confidential Settlement Agreement, Cosby has suffered serious and irreparable harm that cannot be cured by money damages and also has suffered substantial monetary damages, in an amount to be proven at trial,” the filing adds.
The February 1 jury-seeking complaint was filed under seal just one day before the comic and actor was in a Pennsylvania court in an unsuccessful attempt to get the trio of felony charges of second-degree aggravated indecent assault against him tossed. But now, as ordered by a federal judge, a portion of Cosby’s latest countermove over the breaking of confidentiality agreements become public Wednesday.
“Andrea and Gianna Constand, both citizens of Canada who are outside the jurisdictional reach of the Montgomery County, Pennsylvania, District Attorney, voluntarily participated in a 2015 re-investigation of Andrea Constand’s allegations against Mr. Cosby,” says Cosby’s 29-page complaint. “Both Andrea and Gianna Constand voluntarily sat for interviews with the District Attorney, even though they were under no legal obligation to do so and the terms of the Confidential Settlement Agreement expressly prohibited such conduct.”
The complaint adds: “Their attorney, Dolores Troiani, voluntarily cooperated with the investigation and turned over her case files from the Underlying Litigations to the District Attorney, directly violating the express terms of the Confidential Settlement Agreement. Defendant American Media, Inc., has published and continues to publish stories regarding allegations against Mr. Cosby made by Andrea Constand and other individuals despite its clear contractual obligations to not publish any stories relating to certain allegations against Mr. Cosby.”
Dolores Troiani and Constand’s other lawyer Bebe Kivitz aren’t taking Cosby’s latest legal move without some pushback of their own.
“Cosby requested the court afford him the right to make accusations while preventing disclosure of the terms of the settlement agreement to allow the public access to the information essential to evaluate the validity of his claims defendants violated their agreement,” says a February 12 filing by Troiani and Kivitz challenging the “self-styled public moralist” actor’s desire to file the complaint under seal (read it here). In the paperwork made public yesterday, they counter that Cosby has shown no “specific cognizable injury” to warrant the seal and keeping the settlement terms secret – especially since he wants the amount of the settlement in question back.
In a tale similar to what more than 50 other women have alleged, Constand said that The Cosby Show actor drugged and assaulted her in his suburban Philly mansion in early 2004. The ex-Temple University employee went to the authorities in early 2005, but Montgomery County District Attorney Bruce Castor declined to press criminal charges then, citing, as he said earlier this month, “insufficient, credible and admissible evidence.” Promised a binding non-prosecution agreement by Castor, Cosby did not use his Fifth Amendment rights and did testify in a 2005 civil case brought forward by Constand.
National Enquirer owners American Media were added to the case in late 2005 over an interview with Cosby published that year where Constand claimed the actor had accused her of “extortion.” Neglecting to speculate if Constand was suing him for money, Cosby’s quote to the Enquirer was, “I am not going to give in to people who try to exploit me because of my celebrity status.” The civil case was dismissed in 2006 after being resolved in a settlement that Constand attorneys Troiani and Kivitz helped broker. Everyone was required to sign a confidentiality agreement as part of the settlement.
However, last summer the portions of Cosby’s decade-old sealed deposition in the matter became public, as did revelations that the actor admitted to having prescription drugs for having sex with women. That information has fueled several defamation and other civil cases against Cosby by women who say he sexually assaulted them. Cases that have led to new depositions, upcoming depositions LAPD investigations and, as a part of that offence strategy, counterclaims by Cosby.
Late last year, newly elected Montgomery County District Attorney Kevin Steele filed the first criminal charges against Cosby, just before the state’s 12-year statute of limitations expired. Cosby was arraigned and released on $1 million bail December 30 without entering a plea. Facing up to a decade behind bars, Cosby has fought the charges and Steele but saw those efforts gutted by Pennsylvania Judge Steven O’Neill on February 3 after two days of hearings on the matter, Castor’s deal and Steele’s role in any future prosecution. Further efforts to halt the matter so far have proved a failure for Cosby, who is expected back in front of O’Neill on March 8 for a preliminary hearing.
With Cosby’s lawyers told that her testimony could not be seen as breach of the confidentiality agreement, Troiani took the stand on February 3 in Norristown, PA. During her time before the court, Troinai mentioned almost as an aside that Cosby had sued her. Eduardo Robreno was the judge in the civil matter more than 10 years ago and also is on the new case in the Eastern District of the Keystone State.
Samuel Silver and John Timmer of Philly firm Schnader Harrison Segal & Lewis LLP are representing Cosby in this case. Cosby’s main lawyer, Christopher Tayback of L.A.’s Quinn Emanuel Urquhart & Sullivan LLP, officially was added to the case on February 12. Jeffrey McCarron of Swartz Campbell & Detweiler represents Troiani and Kivitz. Andrea Constand and her mother are, once again, having their legal matters handled by Troiani and Kivitz, who otherwise are no longer business partners.