[00:00:00] Speaker 00:
Case number 22-7204, Terry G. Wright, a balance, versus Eugene and Agnes E. Meyer Foundation, and Nicola O'Gorn.

[00:00:10] Speaker 00:
Mr. Sales for the imbalance, Mr. Davis for the obelisk.

[00:00:15] Speaker 02:
Good morning, Your Honors, and may it please the Court.

[00:00:17] Speaker 02:
My name is Derek Sales, and I'm very proud to be representing Dr. Terry Wright in this matter.

[00:00:23] Speaker 02:
Today I'd like to present four issues.

[00:00:26] Speaker 02:
Number one, related to the dismissal of her complaint,

[00:00:29] Speaker 02:
that the district court erred when it dismissed plaintiff's complaint and claim for violation of 42 USC section 1981, where the facts in the complaint permitted a reasonable inference that defendant Boren disparaged her in violation of the party severance agreement because of racial violence.

[00:00:52] Speaker 02:
Second, that the district court erred under federal rule of law procedure 12B6 when it dismissed plaintiff's complaint and claim

[00:01:00] Speaker 02:
for violation of 42 USC section 1981, where the complaint provided defendants with fair notice of the basis for her section 1981 claim.

[00:01:11] Speaker 02:
Third, that the district court heard when it dismissed the plaintiff's complaint and claim for breach of contract, where the complaint properly pleaded defendants breached the mutual non-dispersion provision of the party severance agreement, and the district court wrongly held that no such breach occurred

[00:01:29] Speaker 02:
And they have nullified the terms of the non-despairment provision of the contract.

[00:01:38] Speaker 02:
And then fourth, that the district court erred under federal rule of civil procedures 12b6 when it utilized the common interest privilege to dismiss plaintiff's complaint and claim for defamation where the common interest privilege is defeated by the complaint's allegations of intentional racial discrimination and that where there was no common interest

[00:01:58] Speaker 02:
between defendants and non-party, Dr. Mady-Henson.

[00:02:03] Speaker 01:
Can I clarify your section 1981 claim, counsel?

[00:02:08] Speaker 01:
If you don't prevail that there was actually at least adequately pled a breach of contract, then you can't prevail on the 1981 claim, right?

[00:02:22] Speaker 01:
Because you have to,

[00:02:24] Speaker 02:
um interfere with a contract and if there's no contract then you can't have the 1981 violation right am i right about that no um your honor we respectfully disagree with that i think under the fair notice division um case law that we've given notice that this is a 1981 violation regardless of whether or not there was a breach of the severance here we allege

[00:02:54] Speaker 02:
that Dr. Wright was treated differently than white employees of the Meyer Foundation.

[00:03:07] Speaker 02:
And in particular, what we allege is that the statement that was made by defendant Warren to Dr. Henson was one that was equivalent

[00:03:25] Speaker 02:
to a situation where a former employer gives a negative review or a negative employment justification or verification or a negative statement about their work to a potential employer.

[00:03:46] Speaker 02:
Here, once Dr. Wright was no longer employed by the Manner Foundation because she worked in the philanthropic

[00:03:55] Speaker 02:
community.

[00:03:56] Speaker 02:
Um, the statement to rags and, uh, President was one that denied her the opportunity to potentially get a job there.

[00:04:06] Speaker 02:
And under, um, the case law excited that constitutes a 1981 violation.

[00:04:14] Speaker 01:
So assume for the sake of this argument that I just want to drill down on the breach of contract claim because I'm not

[00:04:24] Speaker 01:
so certain about that theory of 1981, how was the statement made a breach of contract by the foundation as opposed to an act for which Ms.

[00:04:41] Speaker 01:
Gorin individually could be liable?

[00:04:46] Speaker 02:
Right.

[00:04:46] Speaker 02:
The contracts are all for mutual non-disparagement, and as such,

[00:04:54] Speaker 02:
The foundation itself was bound not to disparage Dr. Wright.

[00:05:04] Speaker 02:
Under the terms of the contract, the obligation was for not only to tell the officers of the operation not to disparage, but once those officers were told and then did

[00:05:24] Speaker 02:
that bound the company.

[00:05:28] Speaker 02:
If I could use an example, Your Honor.

[00:05:30] Speaker 02:
Let's say, for example, the Meyer Foundation had contracted with a vendor to receive services.

[00:05:43] Speaker 02:
And as part of that contract, the foundation indicated that upon receiving the services and the invoice for those services,

[00:05:54] Speaker 02:
It would direct its bookkeeper to make payment.

[00:06:03] Speaker 02:
The services were rendered.

[00:06:04] Speaker 02:
The foundation itself directed its bookkeeper to make payment.

[00:06:13] Speaker 02:
But then the bookkeeper didn't make payment.

[00:06:16] Speaker 02:
So now the vendor sues the foundation that, hey, we didn't get paid.

[00:06:23] Speaker 02:
And then the fact and the foundation says, well, wait a minute.

[00:06:27] Speaker 02:
All we said we do is direct the bookkeeper to make payment.

[00:06:33] Speaker 02:
If she pays it or doesn't pay it, that's on her.

[00:06:37] Speaker 02:
We're not responsible.

[00:06:39] Speaker 02:
Notwithstanding the fact that the foundation got the benefit of those services.

[00:06:46] Speaker 02:
And that's what we have here.

[00:06:48] Speaker 02:
We have Dr. Henson, we have Dr. Wright agreeing

[00:06:52] Speaker 02:
not to disperse the foundation.

[00:06:57] Speaker 02:
And she lived up to it.

[00:06:58] Speaker 02:
She provided her word.

[00:07:00] Speaker 02:
She lived up to her word and gave the foundation non-disparagement.

[00:07:08] Speaker 02:
The foundation then directed its office, presumably defending Gordon, not disbarring him.

[00:07:19] Speaker 02:
Dr. Wright.

[00:07:19] Speaker 02:
And yet she does.

[00:07:22] Speaker 02:
And we say that because of it, the foundation is just as responsible as if the bookkeeper didn't pay the bills.

[00:07:31] Speaker 02:
And I'm certain that under this court's precedent, that if the vendor in that scenario that I came up with sues the foundation and says that they owe money for the services that we provided, not understanding what their bookkeeper may have done or not

[00:07:51] Speaker 02:
that this court would say, you owe the money.

[00:07:53] Speaker 02:
You've got the service.

[00:07:55] Speaker 02:
You owe the money.

[00:07:58] Speaker 02:
Because you cannot render or read a contract that renders it a note.

[00:08:03] Speaker 02:
And so there has to be some revision by which Dr. Wright can get redrafted.

[00:08:14] Speaker 02:
And so I hope I've answered your honest question.

[00:08:21] Speaker 08:
With regard to... Did you allege a violation of the breach of the duty of good faith and fair dealing?

[00:08:28] Speaker 08:
Or just alleging a violation of the terms of the non-disparagement provision?

[00:08:32] Speaker 02:
I think it's incorporated.

[00:08:34] Speaker 02:
I don't know if we said those terms exactly in our complaint.

[00:08:41] Speaker 02:
But under this court's case law, under this Columbia case law, read into every single agreement is

[00:08:51] Speaker 02:
the requirement of a duty of good faith and fair dealing.

[00:08:55] Speaker 08:
That may be read into contracts, but alleging a breach of contract, people can allege it in two different ways.

[00:08:59] Speaker 08:
They can allege a breach of the terms of the contract, or they can allege a breach of the duty of the implied duty of good faith and fair dealing.

[00:09:07] Speaker 08:
But they're usually two separate allegations, I think.

[00:09:10] Speaker 08:
Is there a case where we've said that alleging a breach necessarily encompasses both?

[00:09:18] Speaker 02:
I don't know.

[00:09:19] Speaker 02:
I know we cite cases.

[00:09:22] Speaker 02:
We believe that the cases that we cite go to the proposition that when you allege a breach of contract, that that gives fair notice that it would be either a breach of specific terms of the contract or a breach of the duty of good faith and fair healing.

[00:09:41] Speaker 02:
And so I don't know that necessarily we're required

[00:09:45] Speaker 02:
to state what's at the pleading state.

[00:09:49] Speaker 02:
And so maybe as we go further, as discovery is allowed, we'll be able to amend our complaint if that's required.

[00:10:00] Speaker 02:
But I don't think at this stage that that is a requirement to be alleged a breach.

[00:10:06] Speaker 02:
And we set forth why.

[00:10:08] Speaker 01:
Let's suppose that breach of the implied covenant of good faith and fair dealing is a separate theory of liability than breach of the expressed terms of the contract.

[00:10:22] Speaker 01:
Is it your contention that there is no breach of the expressed terms of the contract and that it's only

[00:10:34] Speaker 01:
a breach of the implied covenant, a good face and fair dealing?

[00:10:38] Speaker 02:
No, I mean, I think that there is a breach of the explicit terms of the contract as well.

[00:10:44] Speaker 02:
One of the things that the district court did not do is address the term that's in the contract of mutual non disparagement.

[00:10:55] Speaker 02:
That term is what it is.

[00:10:57] Speaker 02:
It's mutual.

[00:10:58] Speaker 02:
It goes both ways.

[00:11:00] Speaker 02:
It's not one way and not the other.

[00:11:04] Speaker 02:
And so in that sense, yes, we allege that there was a breach of the specific terms of the contract when Nikki Gorin disparaged Dr. Wright.

[00:11:17] Speaker 02:
So I think, I hope I've answered your question.

[00:11:22] Speaker 06:
Yeah.

[00:11:22] Speaker 06:
How long does the promise to direct last?

[00:11:25] Speaker 06:
And here's what I'm thinking.

[00:11:27] Speaker 06:
I might direct myself.

[00:11:28] Speaker 06:
to brush my teeth every day for the rest of my life.

[00:11:32] Speaker 06:
But I might be good on that for a few days.

[00:11:35] Speaker 06:
But then after a while, I slip up and I get out.

[00:11:41] Speaker 06:
Have I reached the order to myself?

[00:11:47] Speaker 06:
Let's say the order is brush your teeth.

[00:11:50] Speaker 06:
Or did I

[00:11:56] Speaker 06:
Did I?

[00:11:57] Speaker 06:
Maybe this is actually, I didn't really phrase this way.

[00:11:59] Speaker 06:
Do you see what I'm getting at?

[00:12:00] Speaker 06:
It's not your fault if you don't.

[00:12:02] Speaker 02:
I think if your honor is asking whether or not there's a time limit on how long this particular term of the contract.

[00:12:10] Speaker 02:
That's a much better put.

[00:12:10] Speaker 02:
I say that the requirement lasts forever.

[00:12:20] Speaker 02:
that there is a duty, a mutual duty, not to disparage one another.

[00:12:28] Speaker 06:
Why is that the case rather than, oh, we promise to direct our employees and directors not to disparage Dr. Wright?

[00:12:36] Speaker 06:
Today, we will direct them to do that.

[00:12:39] Speaker 06:
And after today, no promises.

[00:12:45] Speaker 02:
That's not what the terms of the contract say.

[00:12:48] Speaker 06:
Well, it doesn't say forever and it doesn't say only for a day.

[00:12:51] Speaker 02:
It says mutual.

[00:12:52] Speaker 02:
What mutual means, I think a reasonable fact line, what mutual means is equal.

[00:13:01] Speaker 02:
And so as long as Dr. Wright is bound by the terms of this contract, so is the foundation and its officer.

[00:13:10] Speaker 02:
And so if Dr. Wright be sued on her deathbed at age 99,

[00:13:18] Speaker 02:
because she's disparaged the Maher Foundation or any of the officers of the Maher Foundation, then likewise, the Maher Foundation should be required to do the same.

[00:13:33] Speaker 02:
I see that I'm over my time.

[00:13:34] Speaker 08:
Do you have any questions right now?

[00:13:37] Speaker 08:
We'll give you a couple of minutes on rebuttal.

[00:13:39] Speaker 02:
How about that?

[00:13:49] Speaker 04:
Ms.

[00:13:50] Speaker 04:
Davis.

[00:13:55] Speaker 07:
Good morning, Your Honor, and may it please the court.

[00:13:59] Speaker 07:
I'd like to address a couple of issues that Mr. Sellers raised in response to some questions posed by the panel.

[00:14:10] Speaker 07:
First of all, I agree that the issue here, based on the complaint that was filed,

[00:14:16] Speaker 07:
is whether or not there was a breach of the severance contract.

[00:14:20] Speaker 07:
The complaint explicitly states that Ms.

[00:14:25] Speaker 07:
or Dr. Wright has brought this case because of a breach of the severance contract.

[00:14:32] Speaker 07:
Now, Mr. Sellers, it would like to focus on the title of paragraph six,

[00:14:40] Speaker 07:
of the severance contract that says mutual non-disparagement and completely disregard the substance of paragraph six that specifically sets forth the obligations of each of the parties to the severance contract.

[00:14:58] Speaker 08:
It seems like you want to look at those sentences, but ignore the name of the provision, the mutual non-disparagement.

[00:15:06] Speaker 08:
So both of you only want to look at part

[00:15:10] Speaker 08:
of the provision.

[00:15:11] Speaker 08:
What's mutual about non-disparagement under this contract?

[00:15:18] Speaker 07:
Sorry.

[00:15:19] Speaker 07:
Both parties agreed not to disparage and the nature of that obligation is spelled out in the substance of paragraph six.

[00:15:28] Speaker 08:
The foundation did agree not to disparage.

[00:15:33] Speaker 07:
What the foundation agreed

[00:15:35] Speaker 07:
under the paragraph mutual non-disparagement was to direct its officers, directors and employees with direct knowledge of the revised letter agreement, not to make any false disparaging or derogatory statements.

[00:15:51] Speaker 08:
That's not the same.

[00:15:53] Speaker 08:
That's not the same thing as an agreement not to disparage.

[00:15:56] Speaker 08:
I can tell my kids to make their bet, but that does not mean the bet is made.

[00:16:04] Speaker 08:
And it would not be someone else was if my husband was agreeing to make our bed, it would not be a mutual bed making agreement because all I would do is agree to tell the kids to make the bed, but do nothing to require that it happens or to enforce it.

[00:16:20] Speaker 07:
The agreement between the parties was how the foundation could perform its obligation not to disparage when you're dealing

[00:16:29] Speaker 07:
with several officers, directors and employees and to avoid that paragraph being illusory, the foundation committed to that it would direct its officers, directors and employees not to disparage in order to achieve Dr. Wright's goal of not being disparaged.

[00:16:47] Speaker 01:
So let's suppose the foundation signs this agreement and then immediately after the agreement,

[00:16:56] Speaker 01:
They send a notice out to all their employees and officers.

[00:17:02] Speaker 01:
Do not disparage Dr. Wright.

[00:17:05] Speaker 01:
And then five minutes after they send that notice out, they issue a statement from the board of directors and the president and CEO that says, you know, right was a terrible employee and she was toxic and we had to fire her.

[00:17:25] Speaker 01:
et cetera, et cetera.

[00:17:27] Speaker 01:
Have they complied with the contract?

[00:17:31] Speaker 07:
Responding to that hypothetical, because that is not what occurred here, but yes, they would have complied with their obligation under paragraph six.

[00:17:41] Speaker 01:
And you think that that's a reasonable construction of the contract?

[00:17:46] Speaker 01:
Because under DC law, isn't that like our first obligation

[00:17:51] Speaker 01:
is to determine what reasonable people in the position of the parties, knowing all the facts and circumstances would have agreed to.

[00:17:59] Speaker 01:
So you think that if we took that exercise, that would be a reasonable construction of this of the contract?

[00:18:07] Speaker 07:
Yes, your honor, it would be, especially given the circumstances that Dr. Wright had the opportunity to negotiate the language in the mutual non disparagement clause.

[00:18:18] Speaker 07:
To the extent that there was any ambiguity that Dr. Wright was concerned about, she could have proposed alternate language to the foundation to clarify any ambiguity.

[00:18:32] Speaker 07:
She did not, she signed this agreement knowing that the obligation that the foundation committed to was to direct their officers, directors, and employees.

[00:18:44] Speaker 01:
So the person signed the agreement on behalf of the foundation was a doctor horn, right?

[00:18:51] Speaker 07:
Cause she was president and CEO and she signed it at the time she signed it in her capacity as president and CEO of the foundation.

[00:19:00] Speaker 01:
Then about 30 days after she signed this agreement, she made the statements, right?

[00:19:08] Speaker 07:
Correct.

[00:19:08] Speaker 07:
That is what is alleged.

[00:19:11] Speaker 01:
And so you don't think that there's a plausible argument there then that at least if anyone on behalf of the foundation shouldn't have been making a statement, it could be the president and CEO and the person who signed the mutual disparagement clause.

[00:19:33] Speaker 01:
You don't think that that's a plausible breach of contract theory.

[00:19:40] Speaker 07:
There is no evidence that the foundation didn't perform its obligation to instruct and that Ms.

[00:19:48] Speaker 07:
Gorin didn't, knowing as the signatory to this agreement, didn't instruct herself that she would not disparage and not.

[00:19:58] Speaker 08:
Sorry, I want to make sure I heard she did or did not instruct herself.

[00:20:04] Speaker 07:
There's no, there's no allegation that she did not instruct herself or intentionally disregarded this provision that she signed it and then went on and made a comment knowing that this, this obligation that the foundation had taken on existed.

[00:20:20] Speaker 07:
There's no allegation in the complaint.

[00:20:24] Speaker 08:
Would the president's CEO be the natural person to send out this notice to employees?

[00:20:29] Speaker 07:
It could go out from the CEO, it could go out from the COO, it could go out from the Board Chair.

[00:20:37] Speaker 08:
So it's an open factual question whether if she sent it out, whether she would have sent a copy to herself.

[00:20:45] Speaker 07:
There's no factual issue that was raised by Dr. Wright in this case that the instructions were not given.

[00:20:54] Speaker 08:
Yeah, but the question is whether Dr. Gorin

[00:20:58] Speaker 08:
was instructed not to do it.

[00:21:00] Speaker 08:
The person who sent the notice was him or herself instructed not to speak.

[00:21:07] Speaker 08:
Because usually that's not how things work.

[00:21:10] Speaker 08:
You don't direct yourself to do something.

[00:21:12] Speaker 08:
Isn't that sort of an open fact question here?

[00:21:15] Speaker 07:
That is an open fact issue, but Dr. Wright has not alleged that that obligation was not performed.

[00:21:25] Speaker 08:
I'm sorry, go ahead.

[00:21:28] Speaker 07:
if they had a basis for believing that the foundation did not perform its obligation, it would have been alleged in the complaint.

[00:21:38] Speaker 08:
What I'm trying to understand is that it sounds like the obligation could be performed if Dr. Gorin sent this notice out to all the employees, but didn't include herself as a recipient as opposed to the sender.

[00:21:52] Speaker 08:
So she didn't receive this instruction herself.

[00:21:55] Speaker 08:
She just sent it to everybody else.

[00:21:58] Speaker 08:
And then- But Ms.

[00:22:02] Speaker 07:
Gore would have been aware of this obligation since she signed the agreement.

[00:22:07] Speaker 08:
But the contract doesn't say who's aware.

[00:22:09] Speaker 08:
It says all they have to do is send out the instruction.

[00:22:14] Speaker 08:
It doesn't matter whether people are, under your theory, as I take it, it doesn't matter whether people are aware of it when they, and they nonetheless make it a disparaging statement.

[00:22:23] Speaker 08:
But the question is whether she, Ms.

[00:22:26] Speaker 08:
Gore herself, would have been

[00:22:28] Speaker 08:
directed not to speak disparagingly.

[00:22:31] Speaker 08:
If she wasn't directed, but she's speaking as she is the voice of the foundation, then it seems to me there's a problem with concept of mutual non-disparagement.

[00:22:47] Speaker 07:
The obligation that the foundation assume in paragraph six would be to direct.

[00:22:53] Speaker 07:
It doesn't obligate the foundation to send anything out in writing, but to make

[00:22:58] Speaker 07:
officers, directors, and employees aware that they are not to disparage.

[00:23:05] Speaker 01:
So the provision says it's a mutual non-disparagement.

[00:23:08] Speaker 01:
And then the first sentence says that Dr. Wright will not make false disparaging derogatory statements about the foundation to anyone except in the course of a governmental investigation.

[00:23:29] Speaker 01:
litigation.

[00:23:30] Speaker 01:
And then it says likewise.

[00:23:34] Speaker 01:
Um, and then it says the foundation will direct people not to make statements.

[00:23:39] Speaker 01:
So, so the fact that it's called mutual non-disparagement and the foundation obligation are needed with the word likewise.

[00:23:53] Speaker 01:
Um, you think that, that,

[00:23:55] Speaker 01:
that there's no reasonable construction of that language that would mean that, um, um, or or fact finder.

[00:24:10] Speaker 01:
Good.

[00:24:12] Speaker 01:
could undertake to find liability when the person on behalf of the foundation signing the contract actually makes a disparaging statement?

[00:24:29] Speaker 07:
Correct.

[00:24:30] Speaker 07:
Because the obligations under this agreement go to Dr. Wright and to the foundation, they are the parties to this agreement.

[00:24:42] Speaker 06:
Did Dr. Wright promise to refrain from disparaging anyone?

[00:24:50] Speaker 07:
Did Dr. Wright promise not to make any disparaging?

[00:24:58] Speaker 07:
Yes, she did.

[00:24:58] Speaker 06:
Who did she promise not to disparage?

[00:25:04] Speaker 07:
She promised not to disparage any person or entity.

[00:25:08] Speaker 06:
Any person?

[00:25:11] Speaker 06:
In the foundation and not to disparage the foundation as an entity.

[00:25:15] Speaker 06:
Right.

[00:25:17] Speaker 07:
Or, or any of their release things.

[00:25:22] Speaker 06:
Um, I am trying to figure out why this language is the language that was used in the.

[00:25:34] Speaker 06:
Uh, one theory.

[00:25:37] Speaker 06:
is that it's just boilerplate language.

[00:25:40] Speaker 06:
It's standard and this happens all the time.

[00:25:43] Speaker 06:
Another theory is that this language was really not very generous to Dr. Wright and that was part of a bargain for negotiation where maybe in exchange for some better part of the contract elsewhere, Dr. Wright gave up

[00:26:06] Speaker 06:
a disparagement clause with more teeth.

[00:26:10] Speaker 06:
And then the third possibility, I can only think of three, but you might be able to think of more.

[00:26:15] Speaker 06:
The third possibility is that she just had a really poor attorney.

[00:26:20] Speaker 06:
And so let's take that one out of it.

[00:26:23] Speaker 06:
Let's say that she had a good attorney for the sake of this hypothetical.

[00:26:28] Speaker 06:
Do you know if this language is boilerplate?

[00:26:30] Speaker 06:
And if it's not boilerplate, is it

[00:26:36] Speaker 06:
reasonable on the record before us to think that she might have gotten something like a larger severance payment in exchange for this not very generous disparagement.

[00:26:52] Speaker 07:
So mutual non-disparagement clauses are difficult to negotiate when you're dealing with large organizations like the foundation.

[00:27:02] Speaker 07:
where there are multiple levels and organizations and an inability to police everybody at each level of the organization.

[00:27:12] Speaker 07:
And so as part of the negotiating process, sometimes in this case, the employee is willing to negotiate language, what is found in paragraph six, recognizing that the reality is there might be a low level person

[00:27:32] Speaker 07:
For example, a front desk person who makes it.

[00:27:36] Speaker 06:
I'm going to interrupt you, Ms.

[00:27:36] Speaker 06:
Davis.

[00:27:37] Speaker 06:
And if my interruption messes up an answer that you then think is going to be helpful, I'd welcome it.

[00:27:44] Speaker 06:
But let me see if maybe I didn't phrase it right.

[00:27:50] Speaker 06:
Is this language boilerplate?

[00:27:51] Speaker 06:
Do you know if this language is standard?

[00:27:55] Speaker 07:
I don't know if it's boilerplate for the foundation.

[00:27:59] Speaker 07:
but I do know that frequently when negotiating employment severance agreements and an employee wants a non-disparagement provision, this is a concession that is made because it's the easiest way for the employer to actually take steps to try and ensure that there is no disparagement by key decision-makers.

[00:28:27] Speaker 01:
But you just said in response to my hypothetical that it would be completely consistent with this contract for the board to send out an email to everyone, including themselves saying, do not disparage Dr. Wright.

[00:28:45] Speaker 01:
And then five minutes later, the board sending out an email to the world or posting on Twitter to the world that Dr. Wright

[00:28:57] Speaker 01:
is terrible and disparaging her, right?

[00:29:01] Speaker 01:
Didn't you just answer me that that would be consistent with the contract or am I misunderstanding your prior answer?

[00:29:11] Speaker 07:
I think you may have misunderstood my response or I may have misunderstood the hypothetical in that the obligation was to direct certain key employees and directors who had knowledge of the severance agreement

[00:29:27] Speaker 07:
not to make any false or disparaging comments.

[00:29:30] Speaker 07:
So the foundation could send out a directive to that group, that subgroup.

[00:29:37] Speaker 07:
Shortly thereafter, if the foundation then sent out some type of communication that disparaged Dr. Wright, I believe that Dr. Wright at that point might have a basis for arguing

[00:29:57] Speaker 07:
that there was a misrepresentation in the negotiation of the agreement as to what the intent was here.

[00:30:05] Speaker 07:
That going in that the foundation intended to engage in some type of subterfuge and fool her into signing this agreement and giving up her rights when they did not intend to honor efforts to ensure that she was not disparaged.

[00:30:24] Speaker 01:
How is that any different than a breach of contract claim?

[00:30:31] Speaker 07:
So the difference is that she would have to allege that the foundation did not intend to comply or perform the obligation set forth in paragraph six, which were intended to avoid disparagement

[00:30:52] Speaker 07:
comments, derogatory comments being made about Dr. Wright.

[00:30:58] Speaker 07:
It would be a different claim than what Dr. Wright has brought.

[00:31:04] Speaker 08:
Why wouldn't a claim of breaching the implied duty of good faith and fair dealing not encompass exactly what you just raised?

[00:31:12] Speaker 08:
Conceded could be raised.

[00:31:15] Speaker 07:
It could encompass that, but that was not alleged in this case.

[00:31:19] Speaker 08:
So going back to- DC law does not require an implied duty of good faith and fair dealing to be separately alleged as a cause of action, which is just encompassed within a breach of contract claim.

[00:31:33] Speaker 08:
Then at the pleading stage here, she may not have any such facts, but at the pleading stage here, she would have exactly what you said would be sufficient

[00:31:45] Speaker 08:
to object to a soon after signing disparagement by the one person who absolutely knew there was a mutual non-disparagement clause.

[00:31:59] Speaker 07:
But for purposes of a motion to dismiss, the foundation and Ms.

[00:32:04] Speaker 07:
Gorin did not have noticed that Dr. Wright was attempting to bring a claim of breach of good faith and fair dealing.

[00:32:12] Speaker 08:
That's encompassed as council said, council from Ms.

[00:32:16] Speaker 08:
Wright said, if that's just encompassed with any contractual obligation, if he alleges a breach of contract, breaches of contract, I take two forms, the letter of the contract and the implied duty of good faith and fair dealing.

[00:32:31] Speaker 08:
We're talking about local law here.

[00:32:33] Speaker 08:
So if district law does not require you to plead as a distinct cause of action, the implied duty

[00:32:42] Speaker 08:
good faith and fair dealing, just to lead a breach of contract.

[00:32:45] Speaker 08:
And that would be met here for purposes of 12B6 dismissed.

[00:32:50] Speaker 07:
But Dr. Wright did not plead a general breach of contract claim.

[00:32:55] Speaker 07:
Here there were specific allegations to a breach of the explicit terms of the severance contract.

[00:33:04] Speaker 07:
And upon being advised of deficiencies in the pleading of that claim, Dr. Wright did not amend the complaint.

[00:33:12] Speaker 08:
But one of the expressed terms is mutual non-disparate.

[00:33:17] Speaker 08:
Correct.

[00:33:18] Speaker 08:
That's what I think was breached here, whether textually or as a matter of implied duty of good faith and fair dealing, the exact reasons you just said in response to Judge Wilkins.

[00:33:31] Speaker 08:
Wouldn't that suffice under, do you have any case where that wouldn't suffice under district law?

[00:33:37] Speaker 07:
I do not have any case, but we're happy to submit supplemental briefing.

[00:33:46] Speaker 03:
I ask you a separate question on this common interest question.

[00:33:54] Speaker 08:
What evidence is there that Ms.

[00:33:59] Speaker 08:
Gorin's statement was intended to advance or protect the interests of WRAG or that WRAG had a corresponding interest, a similar interest to Dr. Gorin?

[00:34:15] Speaker 08:
in this situation, which made it established that their interests were corresponding as opposed to potentially adverse.

[00:34:25] Speaker 07:
So the allegation relates to the fact that Ms.

[00:34:28] Speaker 07:
Goran was the board chair for RAG, the Washington Regional Association of Grantmakers, and that this alleged comment was raised during a conversation between the president, Dr. Henson,

[00:34:45] Speaker 07:
and Ms.

[00:34:46] Speaker 07:
Gorin, in which Dr. Henson mentioned to Ms.

[00:34:50] Speaker 07:
Gorin that there was concerns being raised in the grant-making community about the circumstances of Dr. Wright's termination.

[00:34:58] Speaker 07:
That context explains why Ms.

[00:35:07] Speaker 07:
Gorin felt necessary

[00:35:10] Speaker 07:
to respond to that question and explain why the rumors were not true.

[00:35:16] Speaker 08:
I thought, and correct me if I'm wrong, I thought that the sequence here was that Ms.

[00:35:21] Speaker 08:
Gorin first raised, it was just a side conversation, and Ms.

[00:35:27] Speaker 08:
Gorin first raised this, I'm feeling all this heat.

[00:35:31] Speaker 08:
And then Ms.

[00:35:32] Speaker 08:
Dr. Henson responded, yeah, there's a lot going around in the community about concerns here about racial discrimination.

[00:35:41] Speaker 08:
And so Ms.

[00:35:42] Speaker 08:
Gorin initiates it.

[00:35:44] Speaker 08:
Dr. Henson responds, just talking about what's going on in the community.

[00:35:48] Speaker 08:
And at that point, Ms.

[00:35:50] Speaker 03:
Gorin says, oh, well, here's what was going on.

[00:35:59] Speaker 03:
Do I have it wrong?

[00:36:01] Speaker 07:
The sequencing is correct.

[00:36:04] Speaker 07:
The characterization, I think I disagree with in that Ms.

[00:36:09] Speaker 07:
Goran mentioned to Dr. Hansen, again, the board chair and the president that she was feeling the pressure.

[00:36:19] Speaker 07:
And then Dr. Henson was the one who mentioned the fact that there was discussion in the grant making community about the circumstances of Dr. Wright's termination from the foundation.

[00:36:34] Speaker 08:
The WRAG is committed to the funding that it does is to root out discrimination, to expose it, to root it out, to try to prevent it.

[00:36:48] Speaker 08:
And Ms.

[00:36:51] Speaker 08:
Gorin's statement were to justify Ms.

[00:36:54] Speaker 08:
Gorin's actions.

[00:36:58] Speaker 08:
And in doing so, used terminology that could be, these are all just beautiful fact questions, but that could be consistent with stereotypical labeling of discomfort with successful black women.

[00:37:17] Speaker 08:
And so how do we know there's a common interest between Ms.

[00:37:22] Speaker 08:
Goran, who's trying to cover her decision, protect herself from the reaction of those involved in the civil rights community and those who are dedicated to preventing and rooting out discrimination?

[00:37:42] Speaker 07:
But if we take a look

[00:37:44] Speaker 07:
at the amended complaint that was filed in Dr. Henson's action against Reg, we'll see that she says that the statement that was made was merely that there was a negative climate that was Ms.

[00:37:59] Speaker 07:
Gorin's only comment.

[00:38:01] Speaker 07:
In this complaint, we have the embellishment of that conversation, but the court can take judicial notice of an individual who's not involved

[00:38:13] Speaker 07:
in this dispute and was personally involved in a conversation who said the sole comment was a negative.

[00:38:21] Speaker 07:
Are you suggesting we can choose between those two versions of events at this stage?

[00:38:26] Speaker 07:
I believe with respect to the comment that was made, Dr. Henson, who had personal knowledge, as the allegations in this dispute state, Dr. Wright had no personal knowledge of that supposed conversation

[00:38:43] Speaker 07:
until the complaint was filed almost a year later.

[00:38:48] Speaker 08:
So you're saying we should resolve that factual dispute against Ms.

[00:38:51] Speaker 08:
Wright on the face of the complaint?

[00:38:53] Speaker 08:
On the face of that complaint, yes.

[00:38:57] Speaker 08:
And another thing is common interest doesn't apply if someone is not acting in good faith.

[00:39:08] Speaker 08:
And there are allegations and I hesitate to reaffirm these are just allegations of this case, Sage, nothing's been proven.

[00:39:16] Speaker 08:
But there is allegations of racially discriminatory atmosphere at the foundation under Ms.

[00:39:24] Speaker 08:
Gorin combined with an allegation of differential treatment of a white person who was discharged for a similarly ambiguous

[00:39:37] Speaker 08:
reasons didn't sort of share the vision.

[00:39:44] Speaker 08:
And so with those together, why is that not enough to raise at the pleading stage a factual question on good faith for purposes of the common interests?

[00:40:00] Speaker 07:
That is not sufficient because those supposed events

[00:40:06] Speaker 07:
are not closely related to the time when this alleged conversation took place.

[00:40:12] Speaker 07:
It's a month, it was like 30 days.

[00:40:14] Speaker 07:
We also have the fact going back to what I stated earlier about the relationship between Ms.

[00:40:22] Speaker 07:
Gorin and Dr. Henson and the fact that as noted, the reg is in the business of weeding out discrimination

[00:40:34] Speaker 07:
that this conversation would not have occurred in the context of where there would be any type of racial animus.

[00:40:42] Speaker 08:
And so we also have, if we're gonna look at that other complaint, Ms.

[00:40:45] Speaker 08:
Henson accusing Ms.

[00:40:47] Speaker 08:
Goran of leading to another racially discriminatory discharge.

[00:40:52] Speaker 08:
So we've got two allegations, racial discriminatory discharge and allegations in the complaint about a racially discriminatory environment.

[00:41:00] Speaker 08:
And that's in your position, it's not,

[00:41:03] Speaker 08:
enough to plead a question of malice for purposes of the good faith prong of the common interest test.

[00:41:14] Speaker 07:
The allegations raised solely in litigation in this context should not be sufficient.

[00:41:20] Speaker 08:
You have a case that's what more why why these allegations are not sufficient but I'm going to back up I assume you will agree that

[00:41:30] Speaker 08:
racially discriminatory comments constitute a lack of good faith for purposes of the common interest.

[00:41:42] Speaker 08:
You don't have good faith if you're making your statements out of racial animus.

[00:41:46] Speaker 07:
If there is racial animus, that can be inferred from the comments.

[00:41:50] Speaker 07:
Yes, that's correct.

[00:41:52] Speaker 08:
And so if it can be inferred from the comments, but also there's allegations

[00:41:57] Speaker 08:
So, and there's allegations of other allegations of racially discriminatory conduct by the speaker, in this case, Ms.

[00:42:06] Speaker 08:
Goran, again, just allegations, but those allegations are there.

[00:42:10] Speaker 08:
That is not enough in your view to raise a question, to sufficiently show at the 12b6 stage to state a claim

[00:42:25] Speaker 08:
there was not good faith for purposes of the common interest privilege.

[00:42:30] Speaker 07:
Yes, I do not believe those alleged incidents are sufficient for purposes of the section 1981 claim that is brought with respect reference to a severance agreement.

[00:42:44] Speaker 07:
Those allegations were made in the context of the employment relationship.

[00:42:49] Speaker 07:
And in fact, Dr. Wright alleges

[00:42:53] Speaker 07:
tries to separate the Meyer Foundation from Ms.

[00:42:57] Speaker 07:
Gorin.

[00:42:59] Speaker 07:
And so to the extent that the allegation is that the foundation discriminated against her based on her race, I don't believe those allegations are sufficient to find liability under section 1981.

[00:43:14] Speaker 08:
No, but she has a separate, I'm sorry, I wasn't clear.

[00:43:18] Speaker 08:
She has a separate defamation claim, common law defamation.

[00:43:22] Speaker 07:
I apologize, I went back to the 1981 claim.

[00:43:26] Speaker 07:
That's my fault, I wasn't.

[00:43:30] Speaker 07:
I still don't believe that those comments are sufficient because, or incidents, because they are not tied to Ms.

[00:43:37] Speaker 07:
Gorin.

[00:43:38] Speaker 07:
The talk is talking about the foundation and the atmosphere at the foundation.

[00:43:46] Speaker 08:
All right.

[00:43:47] Speaker 08:
Any other questions?

[00:43:49] Speaker 08:
Thank you.

[00:43:49] Speaker 08:
We've kept you up a long time, so thank you.

[00:43:51] Speaker 08:
Thank you very much.

[00:43:53] Speaker 03:
And Mr. Sells will give you two minutes for rebuttal.

[00:44:05] Speaker 02:
Your Honor, I want to start with the common interest privilege.

[00:44:10] Speaker 02:
And I think, Your Honor,

[00:44:13] Speaker 02:
Judge Miller, you hit on the point that we raised in our brief that the issue of common interest, if you get past the bad faith in the comment that Nikki Gordon made, Dr. Henson, and you look at the common interest, that is not common.

[00:44:33] Speaker 02:
What Nikki Gordon is trying to do is cover her own self, trying to cover her own image.

[00:44:40] Speaker 02:
She was the hedge.

[00:44:42] Speaker 02:
the board, the director, the board, she was the head of the board of directors for RAD.

[00:44:53] Speaker 02:
At the time that Dr. Henson came into RAD, there had just been a climate survey that had been taken, where it found that the climate of African American employees in RAD was horrible.

[00:45:09] Speaker 02:
You had a

[00:45:12] Speaker 02:
employee, African-American employee who was required and forced to give up her seat to a white contract, not an employee, but a white contract.

[00:45:24] Speaker 02:
You had a number of African-American employees at RAG who said that RAG was not a place of racial equity, that there was a segregated work environment.

[00:45:38] Speaker 02:
And that's when Dr. Henson took over.

[00:45:40] Speaker 02:
Okay.

[00:45:40] Speaker 02:
And that organization.

[00:45:42] Speaker 08:
You mean when Dr. Goran took over?

[00:45:44] Speaker 02:
No, no, no.

[00:45:45] Speaker 02:
Dr. Henson.

[00:45:46] Speaker 02:
She took over RAG as the CEO, not the board of directors, but the CEO.

[00:45:53] Speaker 02:
She took over.

[00:45:54] Speaker 02:
That was the climate.

[00:45:56] Speaker 02:
It was horrible.

[00:45:57] Speaker 02:
She was brought in to bring racial equity.

[00:46:00] Speaker 08:
Well, I'm talking about the climate at the foundation, which is what your complaint talks about.

[00:46:03] Speaker 08:
And it says, um, under defending Goran's leadership and then details the, I'm looking at the hints.

[00:46:13] Speaker 08:
Well, I'm going to talk about your complaint.

[00:46:17] Speaker 02:
What I'm suggesting is that the motivation, the motivation,

[00:46:22] Speaker 02:
from Nikki Gorin to make those comments was not in Rag's message.

[00:46:32] Speaker 02:
It was in Nikki Gorin's message.

[00:46:33] Speaker 02:
So the idea that the two had a common interest is just from this record, you cannot find it.

[00:46:40] Speaker 02:
It's not there.

[00:46:42] Speaker 02:
That's the only point I was making.

[00:46:43] Speaker 02:
So I went back to where when Dr. Henson took over Rag, it was in a very bad place.

[00:46:52] Speaker 02:
It's a very discriminatory place.

[00:46:54] Speaker 02:
Just like when Dr. Wright obtained her position at the Myers Foundation, there had been, right before Dr. Wright was brought in, there had been a climate search at the Myers Foundation that showed that African-American employees at the Myers Foundation found that it was a toxic working environment for African-Americans.

[00:47:17] Speaker 06:
Did your statement right there just violate

[00:47:20] Speaker 06:
Dr. Wright's obligation under the mutual non-disparagement paragraph.

[00:47:24] Speaker 06:
It's in our complaint.

[00:47:28] Speaker 02:
Does your complaint violate the agreement?

[00:47:32] Speaker 02:
No, because it's in the complaint.

[00:47:34] Speaker 02:
So any statement in a complaint is permitted.

[00:47:38] Speaker 02:
If you're involved in litigation pursuant to the agreement, you're allowed to truthfully testify, truthfully state what the allegations are.

[00:47:48] Speaker 02:
So it does not violate.

[00:47:49] Speaker 02:
the terms of the agreement.

[00:47:51] Speaker 06:
If it were outside the context of the complaint, would what you just said have violated the mutual non-discouragement?

[00:47:58] Speaker 02:
Yeah, it would, yes.

[00:47:59] Speaker 02:
But because this is in litigation over

[00:48:02] Speaker 02:
overrides that.

[00:48:03] Speaker 02:
Yeah, I mean, you're allowed to tell you're allowed to testify.

[00:48:06] Speaker 08:
There's an exception for any litigation in the non-disparagement clause.

[00:48:09] Speaker 02:
Yeah.

[00:48:09] Speaker 02:
Well, this kind of others.

[00:48:11] Speaker 02:
Right.

[00:48:11] Speaker 02:
And so the idea of Nikki Boren making these statements as it being in the common interest is just simply not you can't get that on these facts.

[00:48:24] Speaker 02:
And at a minimum, it raises a question as to what is the common interest here.

[00:48:30] Speaker 02:
So I just wanted to make that point.

[00:48:32] Speaker 06:
Who do the releasees refer to in the mutual non-disparagement paragraph?

[00:48:38] Speaker 06:
It's A27 of the appendix, and it says, you agree that you will not make any disparaging statements regarding the foundation or any of the other releasees.

[00:48:58] Speaker 06:
And I'm just, I really, it's just a total,

[00:49:02] Speaker 02:
I don't know the answer.

[00:49:05] Speaker 02:
I think what that refers to are the employees of the Meyer Foundation, which would include everybody who works

[00:49:18] Speaker 08:
And JA26 says it's respective predecessors, successors, affiliates, subsidiaries, parent companies and assigns, and all of their respective past and present directors, officers, partners, members, stockholders, plan administration, fiduciaries, insurers, agents, attorneys, and employees.

[00:49:34] Speaker 02:
That covers a wide spot.

[00:49:39] Speaker 02:
Now in terms of, I think your honor.

[00:49:44] Speaker 08:
You're going to need to wrap up here for us.

[00:49:47] Speaker 02:
Okay.

[00:49:48] Speaker 02:
The last point is to the extent that the agreement, the mutual non-disparagement language is in, you know, creates an imbalance in the, or like, I'm not thinking the right term right now, but if there's ambiguity, I'm sorry, if there's ambiguity in the language of the contract, it must be construed against the draft.

[00:50:17] Speaker 02:
In this case, the drafter was Nikki Gordon and the foundation.

[00:50:23] Speaker 02:
And we believe that as a result, again, as you look at the breach of contract, then you have to look at any ambiguity has to be looked at in favor of the non-draft.

[00:50:41] Speaker 08:
Thank you very much.

[00:50:42] Speaker 08:
The case is submitted.