By Josh Gerstein
June 15, 2016
A lawyer for Donald Trump tried to turn the tables on prominent Washington chef Jose Andres Wednesday, arguing that it was Andres' "passionate" political views that blew up a contract to open a restaurant at Trump's big new hotel in the capital.
Andres pulled out of the deal last year after Trump harshly criticized Mexican immigrants on the presidential campaign trail, referring to them as "rapists."
"Mr. Andres has been outspoken on the immigration issue. He has passionate political beliefs. I'm not here to dispute them or argue about them," Trump attorney Rebecca Woods said during an hour-long hearing before D.C. Superior Court Judge Jennifer Di Toro. "They made the decision to disaffiliate from the Trump Organization....I am here merely to enforce the contract."
Andres attorney Brigida Benitez said the issue was not Andres' position on immigration, but that Trump's statements essentially doomed the planned restaurant.
Andres has argued that his planned business would have been particularly hurt by Trump's comments because it was supposed to be a "Hispanic restaurant."
"Donald Trump made statements that were widely perceived as anti-Hispanic and to which many people Hispanic and non-Hispanic took great offense," Benitez told the judge. "The impact of Mr. Trump’s statements unquestionably increased the risk profile of the proposed Spanish restaurant."
Benitez said the proposed restaurant would have struggled to get enough diners and staff to survive. Andres' existing Spanish restaurants in Washington have staff that is 71 percent Latino and between 11 and 15 percent of the diners are Latino, she said. Many of the other workers and customers are "Hispanophiles," she added.
Trump's public remarks about Mexican immigrants in mid-2015 triggered public outrage that violated his implied duty of good faith and fair dealing in the lease with Andres, Benitez said.
"They’re bringing drugs. They’re bringing crime. They’re rapists. And some, I assume, are good people," Trump said at his announcement speech last June.
Trump sued Andres after the chef indicated he was abandoning plans for the new eatery at the Trump International Hotel under construction at the Old Post Office Building on Pennsylvania Avenue. Andres countersued, faulting Trump's statements for the plans falling apart.
The courtroom showdown Wednesday was another example of how litigation has enmeshed the presumptive Republican presidential nominee. He's scheduled to give a deposition behind closed doors Thursday in a suit he filed over another planned restaurant in the same hotel. And Trump is on the receiving end of a pair of class-action suits in California and a state-filed suit in New York over his defunct Trump University real estate seminar program.
Trump's likely rival this fall, Hillary Clinton, has her own legal troubles. A federal criminal investigation into her private email set-up is ongoing and she may be interviewed by the FBI in that probe shortly. There's also a morass of Freedom of Information Act lawsuits over her email, with a judge in one of those cases mulling a request that she be ordered to testify about the e-mail mess.
During Wednesday's hearing, Trump's lawyer argued that allowing Andres to back out of the lease would open a pandora's box of sorts that could nullify contracts anytime a prominent business owner says something controversial.
"Warren Buffett, the Koch brothers, Jeff Bezos...any of those people with affiliated companies could make controversial statements," Woods said.
Trump "made political statements that were not directed to the subject of the restaurant….They’re no more related to the contract than Mr. Trump’s statements about unions or trade or tax," she added.
The Trump attorney also took another swing at Andres, apparently alluding to the chef's comments last October calling Trump "a clever maniac."
"Mr. Andres, he’s made some very sharp comments about Mr. Trump," Woods noted. "Would we be in a position to say he’s breached the duty of good faith and fair dealing by making overly negative statements?"
Woods also that said some of the social media attention to Trump's comments was exaggerated and that Trump should not be responsible for that.
"He qualified his statement. He said many nice things about Hispanics," she insisted.
While Andres' side painted a gloomy picture of the restaurant's prospects, Woods said such judgments were speculative and the outcome of the presidential race could have led the eatery to be even more popular.
Maybe "if [Trump] gets elected president, he’ll attend that restaurant and people will go…We don’t know," she suggested.
Andres' lawyer said the chef was entitled to make a business judgment that the restaurant was no longer viable. Andres' company "was not required to go bankrupt in order to terminate the contract," Benitez said.
"This case is not about anyone's political views," Benitez argued. "Putting aside perhaps the players, this is a pretty straightforward, plain vanilla breach-of-contract case."
While Trump's legal team has referred to the inflammatory remarks as "political statements" about immigration policy, Benitez rejected that characterization.
"It may be nice to call them about federal immigration policy, but it wasn't about federal immigration policy, it was about Hispanic immigrants and he used terms that were very derogatory," the Andres lawyer said. "Hispanic organizations called for a boycott of everything Trump."
However, Woods noted that Andres' lawyers could have negotiated in the lease a "morality clause" that required good public behavior from both sides, but did not.
"There absolutely is a breed of provision called morality causes," Woods said. "They can, in fact, operate as gag orders. That is not in this contract and it's important that it's not in this contract....If they wanted a morality clause they could have put one in."
The hearing Wednesday was on a motion by Andres' side for a ruling that Trump did breach his duties under the contract. Di Toro gave no clear hints of which way she was leaning, but indicated she expects to make a decision in the next two weeks.
If the judge grants the motion, further proceedings would be held to determine what damages Andres' would be entitled to. If she rejects the motion, a trial is possible on who was at fault for the breach of contract and what damages should be assessed.
Trump also filed a parallel lawsuit against restaurateur and chef Geoffrey Zakarian, after he cited Trump's anti-immigrant remarks when bailing on plans to open a separate eatery at the same hotel. The suits are being handled by separate judges.
Neither Trump nor Andres was at the hearing Wednesday.
Technically, Trump, Andres and Zakarian are not parties to any of the suits, which name the businesses involved: Trump Old Post Office LLC, Andres' ThinkFoodGroup LLC and Topo Atrio LLC, and Zakarian's CZ-National LLC and BVS Acquisition, Co., LLC.
Di Toro was appointed to the bench by President Barack Obama in 2011.
For more information, go to: www.beverlyhillsimmigrationlaw.com