Our legal expert, Manhattan attorney Scott Pilutik, has been busy fielding questions since news broke earlier this week that the Church of Scientology had settled its lawsuit with former executive Debbie Cook and her husband Wayne Baumgarten.
After the jump, he takes a detailed look at the court’s final judgment in the matter, which spells out the terms of a new gag order that will prevent the couple from ever again criticizing the church publicly.
And Scott also provided me this short version of how he sees this remarkable case, which began with an infamous e-mail that Cook sent out on New Year’s Eve to her fellow Scientologists…
Debbie Cook signed a mean-as-hell non-disclosure agreement when she left her job with Scientology. She got to violate it, once carefully (her New Year’s Eve e-mail), another time in court (her February 9 testimony), and one more time on national television (on Nightline). Then, instead of paying possibly millions of dollars in damages, she paid the church nothing and turned the clock back to December 31 as if none of it had happened.
I think people are conflating her “victory” at the February 9 injunction hearing with an actual legal victory, which it never was.
Pilutik was reacting to the outpouring of emotion that met the news of the settlement.
After the way Cook exposed the abuses she suffered as a church executive in her dramatic February 9 testimony, many Scientology Watchers had hoped that her case would continue to bring new revelations about church leader David Miscavige and the secretive organization.
To some, Cook’s settlement was a disappointing and even shocking betrayal of that possibility.
But Pilutik says it’s important to remember that although the lawsuit seemed to have backfired on Scientology’s attorneys at several points, its basic premise — that Cook was in violation of a non-disclosure agreement she signed in 2007 — had never been ruled on in court. Cook was facing perhaps millions of dollars in damages if a judge agreed with the church that she had simply breached her contract when she sent out the New Year’s Eve e-mail raising questions about Miscavige’s leadership.
And so far, each of the three times the matter had been heard in Bexar County court, it had been handled by a different judge. With millions on the line, and a fourth judge likely to hear the church’s upcoming motion for summary judgment, Cook had much to lose and very little to gain.
Naturally, some ex-Scientologists and other observers who are eager to see the church’s practices exposed were hoping that Cook was going to press hard to get more revelations out of her former employer. She had filed a counterclaim, and her attorney, Ray Jeffrey, was aggressively pushing the church to produce someone for a deposition and to turn over records. It was Cook’s position that she had signed her 2007 agreement with the church under duress, and that its draconian terms were therefore invalid. But as Pilutik points out, that had never been ruled on by the court, and a new judge might have simply discounted her assertion that she had been forced to sign it while being held against her will.
We don’t know which side approached the other to begin settlement talks. Pilutik says that the timing of the settlement — with considerable time to go before the motion for summary judgment was heard — suggests to him that it was Cook who reached out to the church and not the other way around.
What we do know is that Cook and Baumgarten, according to the final judgment filed Monday, walk away without paying or receiving money from the church, and also are gagged once again. But to my un-expert eyes, the order filed Monday seems less onerous than the NDAs Debbie and Wayne had signed in 2007. I asked Pilutik to make his own comparison, and he sent this detailed analysis…
The only part of the NDA partially rendered in the judicial order is section 6, titled “Covenants” which are mostly reproduced from the original, although they’re condensed and better-drafted. The original NDA is an overwritten mess, imagining the myriad things Cook and Baumgarten are no longer permitted to do instead of more generally categorizing them, which the judicial order does a better job of. Probably the most notable omission from the original in this section is the prohibition against disseminating Scientology’s upper level materials. My guess is that the court would have a problem with that paragraph, as it doesn’t in any way concern disparagement, and would probably constitute “public information” as opposed to “non-public information” of the sort Cook is specifically prohibited from disclosing. The judicial order more explicitly defines what constitutes “non-public information” than the original NDA.
Now section 6 is the meat of the NDA, and it’s mostly been replicated. But every other clause in the NDA isn’t replicated in the judicial order. Namely, Cook’s release of claims she might have against Scientology; Cook’s waiver specific statutory claims; Remedies, Consideration, and so on.
It’s not the prohibitions that interest me though, it’s paragraph 3, which evidently supersedes the liquidated damages clause of the NDA by effectively pushing the question off to another day. The paragraph states, in short, that if any derogatory information is disseminated, “such information could not likely be immediately retrieved nor its damaging effects avoided, making a monetary judgment ineffectual and inadequate.” This means that if Cook and Baumgarten violate this order, the question of damages is for the court to decide.
Paragraph 4 also concerns relief, stating that “[a]ny relief sought by any party which is not granted herein is denied,” This is truly puzzling because there is no relief granted “herein”–the order is an injunction and makes no mention of remedies. Indeed, as mentioned, paragraph 3 kicks the ‘what if’ can down the road rather than address it ‘herein.” What I think this intended to mean is that the relief sought by the parties in the underlying suit and countersuit is officially denied.
Paragraph 5 covers similar territory, by disposing “all claims” and asserting that this judgment is intended to be a “final, appealable judgment.” This is also a bit half baked and begs more questions than answers. But one reasonable inference that can be drawn is that this order will necessarily supersede any other agreement with which it conflicts.
The order seems hastily drafted, and not because so many NDA provisions didn’t make it in, but because the order leaves open to interpretation how the parties should proceed in case of X, Y, or Z. If one party alleges the other party has violated the agreement, they would proceed by filing a contempt action, and the court at that point can fashion its own remedy based on the existing facts. This is certainly more preferable to Cook and Baumgarten than a liquidated damages scheme whereby every violation would be tabulated by accountants to seven figures.
But mostly, Cook and Baumgarten have been returned to the status quo prior to Cook sending the December 31 e-mail, except that she got to tell her story in possibly violation of the NDA, they got to keep the money they received for their silence, got to testify in court on matters that certainly would have violated the NDA, and the most egregious aspects of the now-reformed NDA have either been removed or mitigated. It was the Scientology version of the Amish rite “rumspringa” in which every Amish youth is permitted a short time window to act irresponsibly–drink, do drugs, have sex–before returning to the fold, no questions asked. The question then, I guess, is whether Cook and Baumgarten actually returned to the fold; these terms don’t seem to restrict that possibility, though it seems hard to imagine. And paragraph 3D makes it difficult for Cook and Baumgarten to find an Independent Scientology outlet, since they are all considered enemies of the Church.
As to the repeated claims we have seen online that Cook may have been paid something by the church in a secret side deal which is not reflected in the court judgment, this is what Pilutik had to say over at WWP…
This is highly speculative grassy-knoll territory and moreover makes zero sense. Any “separate agreement” would necessarily contradict the court ordered agreement, which appears to thoroughly cover all the territory one would want to cover at this stage. What good is a secret agreement which contradicts an existing, simultaneously-entered-into court-ordered agreement? What legal force would such a document have? And why would Scientology give money away without consideration — consideration which would otherwise be found in the court-ordered agreement? How stupid do you think Scientology’s lawyers are?
And more importantly, what leverage do you think Cook has over Scientology that necessitates a separate agreement whereby she’d receive money above and beyond what she and Wayne had already received? Even if she favorably estimated her chances of success at trial at, say, 90 percent (and that figure is probably lower), the 10 percent chance that the court validated the NDAs is an outcome that would effectively ruin them for the next decade or so. Anyone who thinks Cook had the leverage to demand cash as part of a settlement is missing the point that the court had not even come close to a finding on the NDA’s validity, and that issue really could have gone either way, although I liked her argument better.
For Scientology’s part, up until the eve of trial or deposition (after which point they would risk an adverse finding on the NDA’s validity), all they risked was additional Cook testimony, the majority of which had already likely emerged during the injunction hearing. And which is how they generally do it. The non-trial-eve timing of the settlement suggests a greater likelihood that Cook andBaumgarten called to settle, and not the other way around; and the party calling for settlement is generally not the one with the leverage.
And finally, Pilutik sent me these thoughts about the court judgment…
The court set up a structure that appears to require all future disputes to return to that court, but the order doesn’t specifically say so, such as it might have with a clause retaining exclusive jurisdiction over all future disputes arising from the order/agreement.
There’s also nothing that explicitly invalidates the original NDA.
So my fear, if I were Cook, would be that if Cook potentially breaches, Scientology doesn’t bother with the Texas court and files a breach suit based on the original NDA in, say, a Florida court. What might a Florida court do? Is it bound to look at the Texas order and say, take your dispute back to Texas? While that would make the most sense, who knows since the order doesn’t explicitly retain exclusive jurisdiction and doesn’t mention the NDA?
Scientology on the High Seas
In November the Voice obtained hundreds of copies of L. Ron Hubbard’s previously unpublished “Orders of the Day,” which he gave to crew members as he sailed the Atlantic and the Mediterranean on the yacht Apollo. Our documents cover the period from late 1968 through 1971, and this time we’re looking at what was happening the week of April 22 through 28 during those years.
This week, the Commodore continues his obsession with headwear…
April 22: LRH finds a dumbness, and Diana admires good old dad.
As people are shoving problems at me through failures in awareness and expertise and as I am being forced to give orders where none would usually be needed and as casual advices are being perpetuated as orders, the following ships regulation is now in force:
EVERY TIME I FIND AN OUTNESS OR DUMBNESS AND HAVE TO CALL ANYONE’S ATTENTION TO IT OR ISSUE AN ORDER TO CORRECT IT, I AM GOING TO DOCK THE OFFICER OF THAT SPHERE OF CONTROL ONE DAY’S ALLOWANCES AND THE OFFENDER ONE WEEK’S ALLOWANCES.
This applies to correcting the actions of a steersman or lookout or motorman or Engineer of the Watch, easing courses, aide actions, anything.
The ship is in non-existence. My work load is well above anything anyone else aboard could begin to do. I am not able to wear my own hats.
The excuse that one doesn’t really know enough to note at once and handle outnesses has worn thin. It no longer goes. Failure to know that one is his post title is an act of Treason.
This order will remain in force until the ship is again neat, efficient, it and its crew are of good appearance and efficient and the tension of existing operations has been eased by someone else getting some ideas and taking some smart actions.
The effort to force the ship into a one man show with nobody else responsible has been a nice try. I intend that it shall cease.
I want to thank our Commodore for taking us through the Straits. It was my privilege and honour to serve him.
Lt. Cmdr Diana Hubbard
Con Watch A
April 27: Now here’s a Policy Letter I’d like to see…
Late item from LRH
I’ve just written an HCO Pol Ltf on “Death Wishes” of interest to the ship.
April 25: The sheer stamina Hubbard has for writing constantly, endlessly, unwaveringly, incessantly, about people wearing their proper “hats” (i.e., performing their assigned roles) is really just superhuman.
The soggy feeling one gets from lines sometimes comes directly from the line passing through a point which isn’t wearing its hat.
Hats can be not worn through ignorance or through neglect. Many times hats are accepted not to help a group but “to have an opportunity to ___________”. Like an MD who studies medicine to “make money” or “to obtain better opportunities with women”. So one has two reasons to wear a hat — (a) to do a job, (b) to have an opportunity to do something else.
When a hat is not worn for any reason at all, one gets a breakdown at that point. We call this a “camouflaged hole”. Somebody has a title but doesn’t do the duties or actions that go with it.
That is the soggy feeling’s cause, the unworn hat. A group that cannot or does not snap and pop and get on top of it has some members in it who aren’t wearing their hats.
The most common reason why hats aren’t worn is because they are not known, this is what we are seeking to remedy with the Hats Programme now in action.
Bonus 1970s Awesomeness
While L. Ron Hubbard was moving HQ from the yacht Apollo to the Florida coast, Advance! magazine was thrilling Scientologists with its tales of “OT Phenomena.” Those church members who had reached the higher levels of spiritual training shared their stories of superhuman powers with fellow dupes — er, enthusiasts. This excerpt is from Issue 30, March 1975.
This week we had to share more than one OT success from Issue 30, they are just that good…
A few years ago I was driving home from work in my sports car when it started to rain. Unfortunately I had left the fabric top at home, so I picked up speed to beat the rain.
As I rounded a bad curve, the heavens opened up with a cloudburst which covered the road with several inches of water. The tires lost their traction and the car went out of control into the oncoming lane. I was heading for a head-on collision at well over 60 miles an hour with a car containing a family of four.
Out of necessity, I picked up my car and literally threw it off the road. I wiped out a sturdy fence built of four by fours, about 50 feet of it, before I came to rest in a stone wall.
The other car stopped and the family came over to offer assistance. They could not believe that I wasn’t hurt, because the car was a total wreck. They also couldn’t understand how my car suddenly swept off the road when it was heading straight for them.
I cursed myself for lack of control which resulted in the loss of my car and the fence. But now, looking back on it, I realize that it wasn’t bad for a thetan who had been out of practice for a goodly number of years, and had only made OT II a few weeks earlier. — Fred Hare, Full OT VII
My processing level is only Objective Processes and I’m on the Hubbard Qualified Scientologist Course now, but I have an OT Success Story just the same.
Yesterday evening I was eating dinner at a cheap place in Manhattan. There was some music coming in over the loudspeakers that I wasn’t enjoying. I found it really was unpleasant to me.
Then I realized that I had put myself at the effect-point of that communication process. I figured out that out-flow is better than inflow, and that I might get somewhere with this problem of unpleasant music if I were creating it. So I started creating the music, while sitting there eating my dinner. Now get this — after a few seconds of this, the music ended in the middle of a beat and a really enjoyable piece came on in its place! And that one played through and ended properly at the end of a bar. — Bruce Pick, Port Washington, N.Y.
Well we know that second one isn’t true because he tips us off right there at the beginning. I mean, you just aren’t going to hoodwink this Gothamite with the words “a cheap place in Manhattan.” I mean, come on.
As for the sports car hero with his Tom Cruise-like tale of helping at the scene of the accident, it’s beginning to dawn on me that these OTs have created a great excuse for being really bad drivers. “But officer, I wanted to skid my car off the road and did so with the power of my mind!” Yeah, I’d buy that for a dollar.
Well, it’s been quite a week here at Scientology Watching Central, but we have a special treat coming up for you in just a few more days. Please check our Facebook author page for upcoming schedules and updates.
Tony Ortega has been the editor in chief of the Village Voice since March, 2007. He started writing about Scientology in 1995. You can reach him by e-mail at firstname.lastname@example.org, and if you ask nicely he’ll put you on his mailing list for notifications of new stories. You can also catch his alerts at Twitter (@VoiceTonyO), at his Facebook author page, on Pinterest, a Tumblr, and even this new Google Plus doohickey.
New readers might want to check out our primer, “What is Scientology?” Another good overview is our series from last summer, “Top 25 People Crippling Scientology.” At the top of every story, you’ll see the “Scientology” category which, if you click on it, will bring up all of our most recent stories.
As for hot subjects we’ve covered here, you may have heard about Debbie Cook, the former church official who rebelled and is now being sued by Scientology. You might have also heard about the Super Power Building, Scientology’s “Mecca,” whose secrets were revealed here. We also reported how Scientology spied on its own most precious object, Tom Cruise. (We wrote Tom an open letter that he has yet to respond to.) Have you seen a Scientology ad on TV lately? We debunked some of the claims in that 2-minute commercial you might have seen while watching Glee or American Idol.
Other stories have looked at Scientology’s policy of “disconnection” that is tearing families apart. You may also have heard something about the Sea Org experiences of the Paris sisters, Valeska and Melissa, and their friend Ramana Dienes-Browning. We’ve also featured Paulette Cooper, who wrote about Scientology back in the day, and Janet Reitman, Hugh Urban, and the team at the Tampa Bay Times, who write about it today. And there’s plenty more coming.