The civil litigation between Prince Andrew and Virginia Giuffre (née Roberts) just took a “Big Lebowski” turn.
In the movie, there is a scene “The Dude” is pressed on what happened to a million dollars in a suitcase. He insists “We dropped off the damn money…” When the Big Lebowski asks “We?,” the Dude responds “I! The Royal ‘we’!…”
It turns out that the settlement agreement between Giuffre and Epstein contains what Prince Andrew might claim is a “Royal We provision.” In exchange for half a million dollars, the settlement expressly bars Giuffre from suing not just Epstein but “other defendants.” Prince Andrew is arguing effectively that the plural reference includes him.
We previously discussed an interesting challenge by Prince Andrew to the applicability of the age-of-consent in New York to the case. He has also challenged (unsuccessfully) the claim that Giuffre is a resident, alleging that she lives in Australia in a $1.7 million home with her husband.
Yet, the long-secret 2009 settlement (below) contains a provision that would seem to favor Prince Andrew in seeking dismissal. In exchange for $500,000, Giuffre agreed not only to release Epstein from any liability but any “other defendants” associated with him. Giuffre agreed to “remise, release, acquit, satisfy, and forever discharge the said Second Parties and any other person or entity who could have been included as a potential defendant (‘Other Potential Defendants’) from all, and all manner of, action and actions” that she may bring, whether “state or federal.”
That is pretty sweeping and the agreement was signed after the alleged incidents involving Prince Andrew.
One thing that the agreement does not include is a reference to “royalty.” Bizarrely, counsel for Prince Andrew claimed publicly that the agreement exempted “royalty.” The prince’s lawyer Andrew B. Brettler wrote that “because Prince Andrew is a senior member of the British royal family, he falls into one of the expressly identified categories of persons, i.e., royalty, released from liability under the Release Agreement, along with politicians, academicians, businessmen, and others allegedly associated with Epstein.”
Nevertheless, the absence to a reference to royalty does not matter if this is viewed as a Royal We provision. Epstein clearly wanted a complete and final settlement not only for himself but his friends.
Giuffre’s attorney David Boies has suggested that the agreement would not include Prince Andrew because he was not subject to any litigation or allegations in Florida where it was finalized. However, such settlements often extend beyond the state of execution and this agreement expressly refers to any actions that Guiffre could bring in “state or federal” courts.
While the U.S. Attorney’s office in the Southern District of New York successfully argued that the actions of Florida prosecutors could not bind it, it is more difficult to argue that a comprehensive civil settlement does not bind a party who received half a million dollars in exchange for her consent.
Look again at the language (emphasis added):
HEREBY remise, release, acquit, satisfy, and forever discharge the said Second Parties and any other person or entity who could have been included as a potential defendant (“Other Potential Defendants”) from all, and all manner of, action and actions of Virginia Roberts, including State or Federal, cause and causes of action (common law or statutory), suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, executions, claims, and demands whatsoever in law or in equity for compensatory or punitive damages that said First Parties ever had or now have, or that any personal representative, successor, heir, or assign of said First Parties hereafter can, shall, or may have, against Jeffrey Epstein, or Other Potential Defendants for, upon, or by reason of any matter, cause, or thing whatsoever (whether known or unknown), from the beginning of the world to the day of this release.
It seems strange that Epstein would have forked over this amount of money for a Florida-only settlement given his involvement with Giuffre and other victims in homes around the world. Giuffre could argue that, regardless of his intent, the device itself was poorly worded by referencing any party “who could have been included as a potential defendant” in that action.
Notably, Prince Andrew was referenced in Florida court filings in December 2014 as part of Giuffre’s description of being trafficked to him on at least three occasions as an under aged girl. She alleged that she was recruited by Ghislaine Maxwell (who was just convicted of related crimes) when she was working as a locker room attendant at Mar-a-Lago, the Florida resort owned by President Donald Trump.
At a hearing, Judge Lewis Kaplan seemed to balk at the idea of dismissing the action based on the agreement. He made a rather convoluted observation that “If what the intention of the parties had been was to release any other person or entity who was in any way involved in any of the sexual activities with Mr. Epstein or others, it would have been easy to say it.” However, it is hard to understand what Epstein intended by such sweeping language if not to secure a waiver of claims against people like Prince Andrew.
Judge Lewis suggested, as a secondary rationale, that he could deny the motion on the basis that Epstein himself would have to enforce it and Epstein is dead: “If someone got sued and Epstein says, look, this person was within the release and it was OK with Giuffre, then it could be made available and Epstein could enforce it but not otherwise.”
So the question is whether this is indeed a Royal We provision with “other defendants.” One thing is clear. Prince Andrew has a stronger basis for arguing that he was included in this sweeping provision than proving his earlier claim that he is incapable of being the sweaty person described by Giuffre on a dance floor at “Club Tramp.”
Here is the settlement: Epstein-Giuffre Settlement