How Trump's Lawyer's Silly Lawsuit Against Buzzfeed May Free Stormy Daniels From Her Non Disclosure Agreement

from the own-goals dept

Thu, Mar 15th 2018 11:54am — Mike Masnick

We've written about Trump's long-term personal lawyer Michael Cohen a few times before. The first time was back in 2015 when he made a particularly stupid threat against reporters for reporting on Cohen's own stupid comments. In case you don't remember:

“I will make sure that you and I meet one day while we’re in the courthouse. And I will take you for every penny you still don’t have. And I will come after your Daily Beast and everybody else that you possibly know,” Cohen said. “So I’m warning you, tread very fucking lightly, because what I’m going to do to you is going to be fucking disgusting. You understand me?”

“You write a story that has Mr. Trump’s name in it, with the word ‘rape,’ and I’m going to mess your life up… for as long as you’re on this frickin’ planet… you’re going to have judgments against you, so much money, you’ll never know how to get out from underneath it,” he added.

That lawsuit never materialized.

The second time Cohen was written about here was when he did sue the press. Earlier this year he actually filed a lawsuit against Buzzfeed over Buzzfeed's decision to publish the infamous Christopher Steele dossier. As we noted, this lawsuit was particularly nonsensical, as he's suing Buzzfeed for statements in the dossier made by someone else.

But, now it appears that that lawsuit may backfire in a way so spectacular, I don't think any novelist could create a twist this diabolical.

You see, Cohen is also at the center of the whole Stormy Daniels mess. If you somehow have been under a giant rock for the past month or so, Cohen has admitted to paying $130,000 to Daniels (real name: Stephanie Clifford). As multiple places have reported, Daniels was apparently paid the money as part of an agreement to buy her silence over an affair she had with Donald Trump a decade or so ago. There are a huge list of important questions around all of this, including whether the whole thing violated campaign finance laws (which it very likely did).

A big part of the fight is over whether or not Daniels can really tell her story. We've noted that Trump lawyers are threatening to go to court to stop CBS from airing an interview, while Daniels' lawyers have argued that the agreement is not valid as Trump never signed it -- while also offering to pay back the $130,000 to break the agreement (which... uh... is not exactly how it works). And I won't even get into the hilariously meaningless "private" temporary restraining order that Cohen went to an arbitration firm to get, without even notifying Daniels.

Enter Buzzfeed: one of its lawyers on the Cohen case, Katherine Bolger from powerhouse law firm Davis, Wright, Tremaine, just sent a letter to Daniels' lawyer, Michael Avenatti, asking Daniels to preserve the documents at issue (i.e., the gag agreement), noting that this may be relevant to their own defense against Cohen. This suggests a plan to subpoena this information, which would likely free it from the gag order (and hand Buzzfeed one hell of a story). The preservation demand covers a lot of potentially interesting info:

This includes without limitation all relevant ESI (including but not limited to e-mail), banking records, Word documents, spreadsheets, PDFs, reports, articles, books, memos, letters, calendar entries, handwritten notes, text messages, chats, phone messages, phone logs, audio recordings, or any other type of document or communication, final or draft, in either written or electronic format.

"ESI" in the above stands for "electronically stored information." The letter also asks for details of "any and all payments made by Mr. Cohen or Essential Consultants, LLC to Ms. Clifford, including but not limited to documents that would show the means by which the funds were transferred and/or the payments were made."

So why does Buzzfeed argue this is relevant to their own case? Well, because Cohen's lawsuit against Buzzfeed argues that Buzzfeed defamed him by implying that he had some role in possible Russian connections with the Trump campaign -- and Buzzfeed argues that cash payments Cohen was making to someone to silence them around the campaign is directly relevant to the questions at play in the lawsuit:

In his Complaint... Mr. Cohen asserts a claim for defamation based on an article published by Defendant BuzzFeed in January 2017 entitled "These Reports Allege Trump Has Deep Ties to Russia".... The Article contained an embedded document file containing a 35-page colleciton of memoranda that primarily discuss Russian efforts to influence the 2016 U.S. Presidential election, including alleged ties between Russia and President Trump's campaign... The memoranda in the Dossier contain certain references to Mr. Cohen that Mr. Cohen alleges falsely imply that he played a role in facilitating Russian interference in the election...

Mr. Cohen's role in President Trump's 2016 campaign, including but not limited to any payments he made or facilitated to third parties during or in connection with the campaign, is therefore directly relevant to the Action.

Who knows if this move will actually work, but if it does, that would be quite an incredible "own goal" by Cohen in which his own silly lawsuit unravels the other legal mess that he's been trying to keep under wraps. This is the kind of plot twist most novelists can only dream about (or reject for sounding to implausible to be real)...

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Filed Under: donald trump, evidence, gag order, michael cohen, nda, stephanie clifford, stormy daniels, subpoena
Companies: buzzfeed

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DONT MAKE ME LAUGH, 15 Mar 2018 @ 11:55am

sweet
lets get here all over the air waves but naked

all we need is someone that would get paid to screw that , yapping....
EWWWWWWWWWWWWWWWWWWWWWWWWWW
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Anonymous Coward, 15 Mar 2018 @ 12:03pm

That lawsuit never materialized.

Did anyone else read that in Ron Howard's voice?
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Anonymous Anonymous Coward (profile), 15 Mar 2018 @ 12:04pm

ESI

"This includes without limitation all relevant ESI (including but not limited to e-mail), banking records, Word documents, spreadsheets, PDFs, reports, articles, books, memos, letters, calendar entries, handwritten notes, text messages, chats, phone messages, phone logs, audio recordings, or any other type of document or communication, final or draft, in either written or electronic format."

He left out thoughts. Our brains work on electricity, don't they? Memories are stored, aren't they? I want to see the subpoena for those.
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Anonymous Coward, 15 Mar 2018 @ 12:06pm

Irony
Mike, you missed a great opportunity to put these quotes together:

“I will make sure that you and I meet one day while we’re in the courthouse. And I will take you for every penny you still don’t have. And I will come after your Daily Beast and everybody else that you possibly know,” Cohen said. … "I’m going to mess your life up… for as long as you’re on this frickin’ planet… you’re going to have judgments against you, so much money, you’ll never know how to get out from underneath it,” he added.

(2 years later)

“They’re going to try to wipe us out with demands on every unrelated issue under the sun,” the attorney for Cohen said.

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Anonymous Coward, 15 Mar 2018 @ 12:33pm

So what's to prevent lawyer Michael Cohen from simply handing off Trump's lawsuit against Buzzfeed to another lawyer to continue the case?

Is there much chance that the judge would refuse to allow Michael Cohen to withdraw from the case?
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Christenson, 15 Mar 2018 @ 12:37pm

Re:
You haven't quite got it...Cohen in this case is PLAINTIFF, and, unlike counsel, those are *really* hard to substitute!

Now, he might dismiss the suit with prejudice...
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Anonymous Coward, 15 Mar 2018 @ 12:43pm

Re: ESI
If you want to get pedantic, basically everything is "electronically stored information". The force that holds all normal solid matter together in our everyday lives is the electromagnetic force. Even a piece of paper would have it's atoms fly apart into a disassociated cloud of electrons and nuclei if not electromagnetically contained in it's current form.
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Christenson, 15 Mar 2018 @ 12:44pm

The crystal ball...
Says, speculatively on no hard evidence, that Cohen got reconnected to Daniels through a Russian operative...

Now, whether the defamation case actually hinges on that, well, it should never get that far...the document was of considerable public interest, even if totally fabricated.
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Anonymous Coward, 15 Mar 2018 @ 12:45pm

Re: Re:
But then, getting it dismissed with prejudice would still be contingent on the judge allowing it.
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Roger Strong (profile), 15 Mar 2018 @ 1:04pm

“You write a story that has Mr. Trump’s name in it, with the word ‘rape,’ and I’m going to mess your life up… for as long as you’re on this frickin’ planet… you’re going to have judgments against you, so much money, you’ll never know how to get out from underneath it,” he added.

Wikipedia: Donald Trump sexual misconduct allegations

In Cohen's defense, there was no need for the lawsuit to materialize once the evangelicals backed Trump as the family values candidate.
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Anonymous Coward, 15 Mar 2018 @ 1:18pm

Well, I know when I think of "family values", I think of someone having an affair with a porn star while his third wife is pregnant with his fifth child and while his business is importing underage girls to force into prostitution.
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Anonymous Coward, 15 Mar 2018 @ 1:21pm

Re: Re: Re:
It would. And it wouldn't prevent Buzzfeed from filing their own case.

Nor will any of this prevent Bobby Three Sticks from investigating this sordid little drama AND from finding out whether it was a one-off, or, as I think far more likely, one of a series of payoffs designed to silence women who came into contact with Jabba the Trump.
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Uriel-238 (profile), 15 Mar 2018 @ 1:57pm

That threat from Cohen is precious!
It should follow him every day for the rest of his life, and remembered once more in his obituary. If by misfortune he should have a grave marker, it should be his epitaph.
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Uriel-238 (profile), 15 Mar 2018 @ 2:05pm

The Family Values Candidate
I suspect the era has dawned in which family values is only used ironically.
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Anonymous Coward, 15 Mar 2018 @ 2:15pm

Re:

allegations

I'm not sure, is that a scandal or his campaign platform?
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Pixelation, 15 Mar 2018 @ 2:35pm

So, is Trumps lawyer protecting a rapist?
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Anonymous Coward, 15 Mar 2018 @ 2:35pm

Re: Irony
What can you say? Just a classic mafia-guy. Can't get much more schmuck blackmailer and pedantic than those hollywood cliches he keeps running his ass with!
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I. Ronic Pentameter, 15 Mar 2018 @ 3:10pm

Does Donald Trump like foods made from
Brassica napus?
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Scote, 15 Mar 2018 @ 3:39pm

If Trump didn't know about the payment, then the NDA is invalid
Cohen has legally painted himself into a box. He claims Trump didn't know about the payment. That's a huge problem for the validity of the NDA.

The NDA is pretty simple at its evil heart, in return for $130,000 and legal releases from Trump, Daniels will never say anything about the affair or anything negative about trump.

The **only** way Trump could not know about the $130,000 is if he didn't know about the NDA. Which means he's not a party or signatory to it, thus it is invalid.

Cohen can't have it both ways. He can't have a valid NDA **and** Trump not knowing about it at the same time.
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Anonymous Coward, 15 Mar 2018 @ 4:23pm

Re: If Trump didn't know about the payment, then the NDA is invalid

The only way Trump could not know about the $130,000 is if he didn't know about the NDA. Which means he's not a party or signatory to it, thus it is invalid.

Why couldn't an attorney sign it on his behalf?
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Anonymous Coward, 15 Mar 2018 @ 5:18pm

Re: Re: If Trump didn't know about the payment, then the NDA is invalid
The attorney can sign it up his (Trump's) behalf if Trump has granted him power of attorney. That's a formal legal document in which A grants B the ability to make decisions on their behalf; for example, older parents may grant power of attorney for medical decisions to one of their adult children.

I strongly doubt this is the case. Trump would never willingly give up even a tiny shred of authority/power.
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Scote, 15 Mar 2018 @ 5:30pm

Re: Re: If Trump didn't know about the payment, then the NDA is invalid
Cohen specifically signed as the LLC and as attorney for the LLC. The lines for Trump and Trump's attorney we're both left blank.
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JoeCool (profile), 15 Mar 2018 @ 5:54pm

Re:
No, I read it in Tom Hanks.
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Anonymous Coward, 15 Mar 2018 @ 6:59pm

Re: Re: Re: If Trump didn't know about the payment, then the NDA is invalid

The lines for Trump and Trump's attorney we're both left blank.

On her copy. What do you want to bet they have a different copy on which those lines got magically signed?
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Scote, 15 Mar 2018 @ 8:40pm

Re: Re: Re: Re: If Trump didn't know about the payment, then the NDA is invalid
Definitely possible. However, that would show Trump and Cohen to be bald-faced liars in court since Cohen dienies Trump knew about the pay off, and Trump denies the affair.

Slate has a good rundown on the contract law:

http://amp.slate.com/news-and-politics/2018/03/a-legal-screw-up-by-michael-cohen-should-give-sto rmy-daniels-the-right-to-tell-her-story.html
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That One Guy (profile), 15 Mar 2018 @ 9:31pm

"What's this $130K charge on your account?" "Oh that, nothing."
Definitely possible. However, that would show Trump and Cohen to be bald-faced liars in court since Cohen dienies Trump knew about the pay off, and Trump denies the affair.

Wait, so Trump denies it happened at all, his lawyer claims Trump didn't know she was being paid to stay silent about The-Afair-That-Didn't-Happen... does he deny that she was paid $130,000? Because if that happened, then it would seem that they are arguing that Trump paid someone a hundred and thirty grand for absolutely nothing.

They really did not think that one through, though at least watching them scramble about trying to bury it provides some entertainment value.
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DB (profile), 15 Mar 2018 @ 9:52pm

Re: The Family Values Candidate
I hadn't thought of that, but now that you bring it up 'family values' might become a punchline.
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DB (profile), 15 Mar 2018 @ 9:58pm

Re: "What's this $130K charge on your account?" "Oh that, nothing."
I think that they have a trial balloon out. They are seeing if people believe Trump didn't have the affair, but Cohen paid blackmail money without asking Trump in the belief that the affair happened.

Or perhaps that Cohen was trying to suppress a false story. Except that won't work because it would be an unreported campaign contribution.
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Michael Barclay (profile), 15 Mar 2018 @ 11:02pm

Need update to the "Streisand Effect"
Since the "Streisand Effect" isn't adequate to describe this degree of shooting oneself in the foot, Mr. Masnick needs to come up with another moniker that will make him even more famous
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Anonymous Coward, 15 Mar 2018 @ 11:46pm

Re: Re: Re: Re: Re: If Trump didn't know about the payment, then the NDA is invalid

However, that would show Trump and Cohen to be bald-faced liars in court...

So? Wouldn't that be kind of like showing that water is wet? No big deal.
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That One Guy (profile), 16 Mar 2018 @ 12:24am

'Fake news: I reject your reality and substitute my own.'
While I've no doubt he'd just brush it aside as 'fake news', there's a difference between being accused of lying in general, and having it demonstrated in court. One of those is all too easy to spin as a baseless accusation, the other, less so.

It wouldn't budge his diehard supporters(and and this point I don't think I want to know what would), but it could shift some people who were only mild supporters, and possibly lead to some entertainment as his supporters try to spin/dismiss it.
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That One Guy (profile), 16 Mar 2018 @ 12:29am

Re: Re: "What's this $130K charge on your account?" "Oh that, nothing."
They are seeing if people believe Trump didn't have the affair, but Cohen paid blackmail money without asking Trump in the belief that the affair happened.

So, trying to see if people would reject the notion that Trump had an affair, paid money to hush it up and lied about it, but believe that nothing of importance happened and he just so happened to pay a hundred and thirty grand to a stranger he had no real connection to, or that his lawyer somehow managed to trick him into signing over that much money with no clue what it was for?

Had an affair, tried to hush it up and lied about it.

Didn't have an affair, shows himself grossly irresponsible with money by giving over a hundred grand to a stranger for no reason.

So monumentally stupid and/or gullible that he can be tricked into just handing that sort of money to someone.

None of those are exactly flattering options.
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The Wanderer (profile), 16 Mar 2018 @ 6:06am

Re: Re: Re: "What's this $130K charge on your account?" "Oh that, nothing."
No, I think what's being suggested is:
- No such affair occurs.
- Woman comes forward falsely claiming that such an affair occurred.
- One of three things happens:
- - Trump denies, in private to his lawyer, that any such affair ever happened. (Truthfully, in this scenario.) Lawyer doesn't believe him.
- - Lawyer decides that it doesn't matter if the affair happened or not, as the mere accusation would do undesirable damage.
- - Lawyer assumes that the accusation must be true, and doesn't bother to consult with Trump at all.
- Lawyer, on the basis of the previous item, pays $130,000 on his own initiative and out of his own pocket (but with the expectation of being repaid eventually) to make the false accusation go away.
In that scenario, Trump either was never involved at all, or was involved only in (truthfully) denying that any affair occurred. His lawyer didn't trick him into signing over the money; at most, his lawyer expected (possibly with zero basis other than assumptions) that he would later hand over the money, and was unpleasantly surprised when that didn't happen.

If you can believe that the lawyer could be throwing himself under the bus for Trump's sake, more readily than you can believe the accuser's claims, it could even be plausible...
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Oblate (profile), 16 Mar 2018 @ 6:18am

Re: Re: Re: "What's this $130K charge on your account?" "Oh that, nothing."

Had an affair, tried to hush it up and lied about it.

Didn't have an affair, shows himself grossly irresponsible with money by giving over a hundred grand to a stranger for no reason.

So monumentally stupid and/or gullible that he can be tricked into just handing that sort of money to someone.

2 out of 3 isn't bad chances for that kind of payoff- I'm changing my name to Stormy Oblate and going to NYC...
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Oblate (profile), 16 Mar 2018 @ 6:38am

Let's open this up a bit...
Question- is everyone that Trump has screwed eligible for a $130k payout? This could have quite an impact on the economy. It could be called Trump's "Grab You by the Stimulus Economic 'Package'".
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Anonymous Coward, 16 Mar 2018 @ 7:39am

Re: Re: Re: Re: "What's this $130K charge on your account?" "Oh that, nothing."
CNN is reporting that Daniels' lawyer says half a dozen other women have come forward with similar stories. He emphasizes that these have NOT been vetted, but that the details accompanying them are similar enough to at least make them plausible. I presume in good time we will find out whether these are real or simply people trying to exploit the situation or frauds attempting to discredit the whole thing.

My own view is that Trump has no doubt has had a long series of affairs with a variety of women, in addition to his sexual assaults, in addition to his exploitation of girls via the Trump Modeling Agency, in addition to his abuse of his wives, in addition to whatever ways he's displayed his total contempt for women. It's quite clear that he's as much a misogynist as he is a racist, and all of these behaviors fit into that mold -- as well as his general personality as a malignant narcissist who expects to have everything he wants immediately and cares absolutely nothing about anyone else.

I really do hope Cohen and Trump pursue litigation, because discovery is going to be really fun.
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Anonymous Coward, 16 Mar 2018 @ 8:28am

Re: ESI
They're called interrogatories.
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Anonymous Coward, 16 Mar 2018 @ 8:29am

Re: ESI
They're called interrogatories. (please ignore or delete my same response below. I replied to the wrong comment.)
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Anonymous Coward, 16 Mar 2018 @ 8:30am

Re: Re: ESI
What's happening? My comments keep ending up in the wrong place.
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Toom1275 (profile), 16 Mar 2018 @ 9:32am

Re: Re: Re: Re: Re: "What's this $130K charge on your account?" "Oh that, nothing."
"CNN is reporting that Daniels' lawyer says half a dozen other women have come forward with similar stories. He emphasizes that these have NOT been vetted, but that the details accompanying them are similar enough to at least make them plausible. I presume in good time we will find out whether these are real or simply people trying to exploit the situation or frauds attempting to discredit the whole thing."

Well having the only lying Roy Moore accuser being the one James O'Keefe invented sets the stage as these Trump accusers starting off with a stronger assumption of credibility.
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Anonymous Coward, 16 Mar 2018 @ 3:49pm

Re: The Family Values Candidate
or it's revealing some very disturbing elements of evangelical family life
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Uriel-238 (profile), 16 Mar 2018 @ 4:58pm

"Disturbing elements of evangelical family life"
A friend of mine who's a refugee from the deep south (specifically, Texas) pointed out that appearances are more important than actual conduct. Husbands and wives, for example, are expected to cheat. But it's the publicity and scandal of it, not the action itself.

I think Trump's mulligan suggests that the extreme strict rules are only to be applied to enemies and strangers. Where it's okay for neighbors to be gay if they're good folks, id est, they're known.
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Scott Lockwood, 17 Mar 2018 @ 5:31am

Suit
The thing that has bothered me all along about the Clifford lawsuit is: Why didn’t her attorney argue that the agreement was void as against public policy under New York law. Adultery is a crime in New York (a misdemeanor), but is not a crime in California. A contract involving a criminal act is void as against public policy. There certainly is a New York nexus since trump lives here and at least some of the “acts” took place in New York. If a judge finds the agreement void as against public policy, Ms. Clifford would not even have to give the money back, or be potentially liable for damages since the agreement is void an initio.
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Scote, 17 Mar 2018 @ 11:16am

Re: Suit
Arguing that the NDA is invalid because your client the porn star conspired to commit a criminal act doesn't strike me as the best legal strategy. The suit for declaratory relief was filed in the state where Cohen filed for and received and ex parte temporary restraining order (to the extent an arbitrator can unilaterally order such a thing) from his hand picked arbitrator.
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