Prince Andrew's Terrible, Horrible, No Good, Very Bad Day

Motion To Dismiss Virginia Giuffre Roberts' Suit For Sexual Assault Almost Certainly Will Not Be Dismissed

Today was a terrible, horrible, no good, very bad day for Prince Andrew. His motion to dismiss Virginia Giuffre Roberts’ lawsuit alleging that he repeatedly sexually assaulted her when she was a teenager was denied by Judge Lewis Kaplan of the United States District Court for the Southern District of New York. At this point, there are no good options for Prince Andrew. The case will go to trial, unless he either settles or defaults.

• Virginia Giuffre Roberts Alleges That Royalty Repeatedly Raped Her When She Was 17, After Jeffrey Epstein “Introduced” Them

In May 2009, Virginia Giuffre Roberts, under the pseudonym “Jane Doe 102” , filed a complaint in the United States District Court for the Southern District of Florida alleging that Jeffrey Epstein had repeatedly sexually assaulted her and trafficked her to be sexually assaulted by others, including “royalty,” when she was a teenager.

• In 2009, Ms. Giuffre Roberts Entered Into A Settlement Agreement With Jeffrey Epstein

In 2009, Jeffrey Epstein entered into a Settlement Agreement with Virginia Giuffre Roberts to resolve her lawsuit against him. The Settlement Agreement provided for Jeffrey Epstein to pay Virginia Giuffre Roberts $500,000 to dismiss her case against him. In addition, she agreed to:

“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 Defendants¹ 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.”

The Settlement Agreement further stated that, “Additionally, as a material consideration in settling, First Parties and Second Parties agree that the terms of this Settlement Agreement are not intended to be used by any other person nor be admissible in any proceeding or case against or involving Jeffrey Epstein, either civil or criminal.”

The Settlement Agreement further stated that it was to be held as strictly confidential by Jeffrey Epstein and Virginia Giuffre Roberts. “Moreover, neither this Settlement Agreement, nor any copy hereof, nor the terms hereof shall be used or disclosed in any court, arbitration, or other legal proceedings, except to enforce the provisions of this Settlement Agreement.”

• In 2021, Ms. Giuffre Roberts Sued Prince Andrew

In 2021, Virginia Giuffre Roberts sued Prince Andrew for allegedly repeatedly sexually assaulting her when she was a teenager. Her complaint alleges that Prince Andrew sexually assaulted her three times: once in London, once in New York, and once on the private island owned by Jeffrey Epstein in the US Virgin Islands:

• In 2021, Prince Andrew Moved To Dismiss The Lawsuit, Claiming That The Suit Was Barred By The 2009 Settlement Agreement Between Giuffre Roberts & Epstein

In October 2021, Prince Andrew’s attorneys filed a motion to dismiss Ms. Giuffre Roberts’ complaint, contending (among other things) that the suit was barred by the 2009 Settlement Agreement between Jeffrey Epstein and Virginia Giuffre Roberts. Prince Andrew contended that he was one of the “other potential defendants” released by the 2009 Settlement Agreement. He specifically argued that he was the “royalty” referenced in paragraph 21 of the 2009 Complaint, who could have been one of the defendants in the 2009 suit that was the subject of the Settlement Agreement. He further argued that he was an intended third party beneficiary of the Settlement Agreement and, on that basis, had standing to assert the Settlement Agreement in his own defense.

• Today, Judge Kaplan Denied Prince Andrew’s Motion To Dismiss

Today, Judge Kaplan denied Prince Andrew’s motion to dismiss in a carefully-reasoned 44 page opinion. As Judge Kaplan explained in his opinion, a motion to dismiss on the basis of the Settlement Agreement must be denied unless the meaning of the Settlement Agreement is free from any ambiguity as to its application to the case. Judge Kaplan held that Prince Andrew could not prevail on his motion to dismiss because the Settlement Agreement was ambiguous on two important questions:

1. Did the term “Other Potential Defendants” include Prince Andrew?

2. Even if the term “Other Potential Defendants” unambiguously did include Prince Andrew, was Prince Andrew empowered to enforce the Settlement Agreement or was its enforcement solely in the discretion of the Estate of Jeffrey Epstein?

Regarding the definition of “Other Potential Defendants”, Judge Kaplan laid out the two competing definitions set forth by Prince Andrew and Virginia Giuffre Roberts, and held that each was “plausible.” On that basis, he held that only a jury could resolve which of those two definitions was correct.

Regarding whether Prince Andrew had the authority to invoke the Settlement Agreement, Judge Kaplan likewise held that there were “plausible” arguments that only the Estate of Jeffrey Epstein could move to enforce the Settlement Agreement on behalf of one of the “Other Potential Defendants” — even if Prince Andrew was such an “Other Potential Defendant”. On that basis, he held that only a jury could determine the issue.

• Footnote 55 Is A Major Prod To Settlement, Even On Terms Painful To Prince Andrew

Although Judge Kaplan’s opinion repeatedly states that it should not be read to indicate any view on what facts would prove to be true, a close read of Footnote 55 shows Judge Kaplan to be strongly prodding Prince Andrew to settle, even on painful terms. Footnote 55 spans three paragraphs over two pages, from page 20 - 21. If it were in text, it would cover more than 1 page. Here is the portion on page 20:

Any time a federal judge writes that a litigant’s argument “cannot be taken at anything approaching face value” that should be read as the judge stating that he believes that the attorneys have destroyed their credibility in his eyes. I am confident that Prince Andrew’s attorneys cringed when they read this statement. It only got worse from there, on page 21.

In the first paragraph, Judge Kaplan essentially called Prince Andrew’s attorneys liars for putting forward demonstrably false assertions about Virginia Giuffre Roberts’ complaint. In the second paragraph, Judge Kaplan pointed out that Prince Andrew’s argument would have virtually zero jury appeal, because it would force Prince Andrew to argue to the jury that he should be held immune from suit in 2022 because he could have been successfully sued by Virginia Giuffre Roberts in 2009 for the exact same conduct.

When Judge Kaplan wrote “At trial, should the case proceed that far . . .”, it is clear that he is stating that only a foolish defendant would allow this case to proceed to trial.

• Prince Andrew Has Only Bad Options In Front Of Him

Now that Judge Kaplan has denied Prince Andrew’s motion to dismiss, he has only bad options in front of him. He must choose which of the bad options is the best bad option for him.

1. Litigate The Case Through Trial, Enduring Depositions and Discovery

If Prince Andrew litigates this case, he is going to have to endure a parade of horribles. For the next 6 months, he will have to participate in “discovery” - the process by which documents and testimony are revealed by the parties. This is a very expensive proposition. He is likely to endure monthly legal fees of $200,000 -$300,000 - for a total bill of $1.2 million - $1.8 million. Meanwhile, David Boies is representing Virginia Giuffre Roberts pro bono, meaning she faces no legal bills. He will be required to hand over highly personal documents, such as his travel itineraries and medical records (to substantiate or refute his claim during his BBC interview that Virginia Giuffre Roberts’ account that he was “sweating profusely” on the night that he raped her in London must be false, because he suffered from a medical condition that prevented him from sweating).

Even worse, Prince Andrew will be subject to deposition at the hands of David Boies. David Boies is, by many accounts, the greatest deposition-taker in modern American jurisprudence. His depositions of Microsoft executives in the late 90s led to the district court judge in the anti-trust case against Microsoft holding that it was an illegal monopoly. I would never want my client to be in the cross-hairs of David Boies at deposition, even if my client were St. Francis of Assisi. No one has ever confused “Randy Andy” (as the British tabloids dubbed Prince Andrew) with St. Francis.

But the nightmare is not limited to potential civil liability. David Boies used his deposition of Ghislaine Maxwell (in Virginia Giuffre Roberts’ civil case against her) to build a criminal case against Ms. Maxwell. As he has stated, he immediately provided the transcript of that deposition to the US Attorney’s Office. The USAO, in fact, indicted Ghislaine Maxwell for two counts of perjury based upon obviously false testimony that she provided during that deposition. Prince Andrew would similarly be at risk while enduring 7 hours of questioning (not including breaks).

Prince Andrew could refuse to sit for his deposition by invoking the Fifth Amendment, but that would be likely be fatal to his defense in the civil case. In a civil case, the fact that a defendant has refused to testify on the basis of his right against self-incrimination can be held against him. Judge Kaplan might merely instruct the jury that they could infer from Prince Andrew’s refusal to testify that he knew that truthful answers would be damaging to his defense. Such an instruction almost always leads the jury to find for the plaintiff. Alternatively, Judge Kaplan enter a “directed verdict” of liability against Prince Andrew, holding that the jury must find him liable and that the only question to be determined is the amount of damages.

After Prince Andrew spent millions of dollars to be endure discovery, he would find that trial would only be more embarrassing and more expensive — even if he prevailed. It would likely cost Prince Andrew an additional $2 - $4 million to pay his legal team to take the case from the end of discovery through verdict at trial (including post-trial motions). If Prince Andrew lost at trial, his reputation and his fortune would be destroyed. But, even if he were to prevail over Virginia Giuffre Roberts, it would be a pyrrhic victory.² The trial would be completely open to the public. Every bit of dirty laundry about Prince Andrew’s past, including his extensive sexual history, would be aired out in public. His claim that the photo of him holding Virginia Giuffre Roberts around her bare waist was a “fake” would almost certainly be debunked. He might not be held to be a rapist, but he would likely be exposed as a liar and a philanderer.

2. Settle On Terms Agreeable To Virginia Giuffre Roberts

Until last week, Prince Andrew’s team has consistently leaked to the press that he had no interest in a settlement, because he wanted to “clear his name.” Since the oral argument on the motion to dismiss last week (which went horribly for Prince Andrew), Prince Andrew’s team has changed its tune, leaking that he was “open” to the possibility of settlement. It will not be so easy for Prince Andrew to settle.

David Boies has informed the press, on the record, that his client is not interested in a “mere monetary settlement.” Translated into regular English, Mr. Boies is saying that Virginia Giuffre Roberts would not settle for any amount of money, unless it was accompanied by an apology and/or acknowledgement of liability. Even if Prince Andrew were able to amass the millions of dollars that likely would be necessary, he does not appear to be anywhere near being willing to admit that he ever met Virginia Giuffre Roberts, let alone that he repeatedly raped her.

3. Abandon The Case And Default

Prince Andrew’s third bad option is to abandon the case and allow a default to be entered against him. If that were to occur, Ms. Giuffre Roberts would obtain a judgment against Prince Andrew for an amount of damages to be determined by the Court. She then would be able to enforce that judgment anyplace that Prince Andrew has assets, such as the UK or Switzerland (where he is trying to sell a chalet for approximately $30 million).

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I have no idea which of the bad options Prince Andrew will decide is his best bad option. We’ll see.

1. The term “other potential defendants” will become very important.

2. “Another such victory and I am lost.”