Erica Herman versus Tiger Woods: The Speak Out Act - Nullification of Nondisclosure Agreement

Update

Motion for "Voluntary Dismissal with Prejudice" was filed on November 10th and granted on November 14th with the Fourth District Court of Appeal. The case is still open however. There might have been a settlement but it was not noted in the case docket or minute orders.

The Appeal

Benjamin Thomas Hodas, attorney for Erica Herman, has filed an appeal with the Florida Fourth District Court of Appeals. Some reports say that the case was withdrawn, however, it is being appealed in a higher court.

The initial brief was filed on September 11, 2023, it argues that granting the motion to compel arbitration was wrong based on the following arguments:

The trial court erred in finding an agreement to arbitrate because...

 - The Appellee failed to meet his burden of showing, with admissible evidence, that the parties agreed to arbitrate. He did not even submit an authenticated copy of the supposed arbitration agreement, or a statement from himself (the supposed counterparty) that he had agreed to arbitrate this dispute.

 - The trial court relied on inadmissible evidence. The trial court relied on inadmissible hearsay.
The Appellee offered three declarations that he contended show the parties agreed to arbitrate. All three were out-of-court statements offered to support the truth of the matters they asserted and thus hearsay. Hearsay is not admissible evidence. Fla. Stat. § 90.103; Robson v. D.R. Horton, Inc., 2021 WL 3914474, at *6-7 (M.D. Fla. Aug.12, 2021)

Since the defendant failed to provide even prima facie proof of an agreement through admissible evidence, which is apparent from the trial court’s failure to make any finding of fact that the parties reached an agreement to arbitrate. There was no admissible evidence. There were no factual findings. But the trial court denied the Appellant the right of access to the courts.

1.  A court cannot compel a party to arbitrate her claims without finding that there was an agreement to do so. E.E.O.C. v. Waffle House, Inc., 534 U.S. 279, 280 (2002).
2. The absence of proof of an agreement to arbitrate is fatal to the trial court’s order. As the U.S. Supreme Court has consistently held, “arbitration is strictly a matter of consent.” Granite Rock Co. v. Int’l Bhd. of Teamsters, 561 U.S. 287, at 299 (2010).

Issues in Controversy

- The trial court took a shortcut to relieve the Appellee of his burden by opining that the nature of the case—seeking a declaratory judgment about, among other things, whether the purported agreement exists—precludes the Appellant from challenging the existence of that agreement.

 - The Florida Declaratory Judgment Act expressly gives plaintiffs the right to seek a judicial declaration about the existence or nonexistence of purported contractual rights and obligations.

 - The relevant question is also whether this dispute “relates” to sexual harassment.

1. An arbitration agreement might have made sense for an employment relationship involving The Woods Jupiter, but it would have been entirely different for Mr. Woods to request and enforce such an agreement as it related to the parties’ purely personal and romantic relationship, which is why it never happened. 
2. Mr. Woods placed increasing pressure on Ms. Herman to stop working at the restaurant and devote herself full-time to their relationship and caring for him and his children. She succumbed to that pressure, and her work at the restaurant stopped in 2020.When this occurred, Mr. Woods did not ask for their personal relationship to be governed by an NDA or arbitration agreement.
3. Mr. Woods was Ms. Herman’s boss. On the Appellee’s own portrayal of events, he imposed an NDA on her as a condition to keep her job in August of 2017 after she began having a sexual relationship with him in 2015. A boss imposing different work conditions on his employee because of their sexual relationship is sexual harassment. 42 U.S.C. § 2000e-2.
4. In October 2022, a dispute arose between Mr. Woods and Ms. Herman, about whether she would be permitted to continue living in the house and whether their relationship would continue. Mr. Woods did not take the dispute to arbitration. Instead, he deployed a scheme of alleged trickery and threats to eject Ms. Herman from the house, take her personal property and pets, and break up with her. 
5. When the sexual relationship ended, she was kicked out of her home. In other words, the availability of her housing was conditional on her having a sexual relationship with a co-tenant. That conduct amounts to sexual harassment under federal and Florida fair housing laws. 24 C.F.R. § 100.600(a)(1); Fla. Stats. §§ 760.20, .37; Noah v. Assor, 379 F.Supp.3d 1284, 1290-91 (S.D. Fla. 2019).

Case Summary

Erica Herman filed a $30 million landlord lawsuit in October against Woods’ trust, alleging the golfer removed her from the home despite their having an oral agreement that ensured she could live there for another five years.

Erica Herman is the former general manager of Tiger Woods’ restaurant ‘The Woods’ in Jupiter Florida. Their relationship in terms of joint tenancy began in 2017 and ended on October 13, 2022. The current lawsuit refers to an oral agreement of tenancy that Tiger is in breach of by deviously moving her out under false pretenses.

Ms. Herman also alleges in a separate suit that a trust controlled by Woods is trying to silence Herman with a nondisclosure agreement that she signed while involved in a personal and professional relationship with Woods. The complaint argues that the NDA should be nullified under a federal law, the Speak Out act, that prohibits an NDA from being enforced when sexual assault or sexual harassment is involved.

Tiger Woods is denying he had an "oral tenancy agreement" with Erica Herman, saying that after "breaking off their relationship" he informed her "she was no longer welcome" in his house.


The golf legend, 47, made the claim against Herman, 38, isn’t a victim of sexual abuse — she’s just a “jilted ex-girlfriend,” according to court documents. This comes after she asserted in court filings that their nondisclosure agreement, she signed in 2017 should be tossed because her accusations involve “allegations of sexual abuse.”


In his response to the suit, Woods accused his ex-girlfriend of trying to frustrate the judicial system because she hasn’t previously alleged abuse — or offered up any proof of such claims — during their months-long legal drama.

“Ms. Herman is a not a victim of sexual assault or abuse sought to be protected by Congress when enacting the statute,” according to Woods’ filing.

Tiger Woods' lawyers contend that during their relationship, "Mr. Woods invited Ms. Herman to live with him as his guest in the Residence. Mr. Woods never negotiated an oral tenancy agreement with Ms. Herman. Nor was there ever a written tenancy agreement between Mr. Woods or the Trust."


Miss Herman claims that by trickery, agents of the Defendant convinced her to pack a suitcase for a short vacation and, when she arrived at the airport, they told her she had been locked out of her residence, in violation of the oral tenancy agreement and in violation of Florida law. 

They then informed her she was not allowed to return to her Residence and, without legal counsel to aid in her in this emotional moment, they utilized a lawyer to confront her with proposals to resolve the issue. 

Defendant's agents attempted to justify their shady conduct by paying for a hotel room and certain expenses for a short period of time, having successfully locked Plaintiff out of her home and frightened her away from returning.

Tiger Woods, right, and his girlfriend Erica Herman following a ceremony where President Donald Trump awarded the Presidential Medal of Freedom to Woods. (AP Photo/Manuel Balce Ceneta/2019

Principals

Plaintiff - Erica Herman
Defendant - Jupiter Island Irrevocable Homestead Trust also known as Eldrick Woods

Plaintiff's Allegations of the Suit and Pleadings 

By agreement with an agent(s) with authority to act for the Defendant, Plaintiff has resided at the Residence for the duration of the Defendant's ownership of the Residence. During that period of time, Plaintiff has performed valuable services at the request of Defendant's agents, all in part performance of the oral tenancy agreement and in reliance thereon.

The oral tenancy agreement gave the Plaintiff the right to live in the residence for a certain duration of time. All expenses that related to Plaintiffs residency, or that resulted therefrom, were to be fully paid by the Defendant or its privies. This agreement was fully performed for the 6-year period prior to the events giving rise to this lawsuit.  Approximately 5 years remained on the oral tenancy agreement.

 No notice or lawful judicial proceeding was commenced to bring the tenancy to a lawful end. Instead, the Defendant elected to engage in "prohibited practices," i.e., self-help, causing severe actual, consequential, and severe emotional damages to the Plaintiff. The prohibited practices were done intentionally and with malice aforethought.

Specifically, by trickery, agents of the Defendant convinced the Plaintiff to pack a suitcase for a short vacation and, when she arrived at the airport, they told her she had been locked out of her residence, in violation of the oral tenancy agreement and in violation of Florida law. They then informed her she was not allowed to return to her Residence and, without legal counsel to aid in her in this emotional moment, they utilized a lawyer to confront her with proposals to resolve the wrongdoing.

Defendant's agents attempted to justify their conduct by paying for a hotel room and certain expenses for a short period of time, having successfully locked Plaintiff out of her home and frightened her away from returning. Since then, Plaintiff has continually demanded to be allowed back into her home, but Defendant's agents have refused. Even worse, Defendant's agents removed Plaintiffs personal belongings from her Residence and misappropriated in excess of $40,000 in cash that belonged to her, making scurrilous and defamatory allegations about how she obtained the money.

Court Dates

May 9, 2023 at 9:30 a.m. with the Honorable Judge Elizabeth A. Metzger to hear the defendant's motion to compel arbitration and extension of time to respond to the amended complaint.

On May 9th, Circuit Judge Elizabeth Metzger held a 45-minute hearing with Woods' lawyer J.B. Murray and Herman's lawyer Benjamin Hodas. Metzger said of the NDA, "Contract law tells me I look at the document and I ask, 'Is it valid on its face?' I've got dates, I've got signatures, I've got terms."

In filings she contends Woods said he'd fire her if she did not sign the NDA, hence her legal action to invalidate the document.

Herman's lawyer, Hodas, suggested the NDA his client signed might not be the one before the judge. "We don't know," Hodas told Metzger. "My client cannot say for certain that is her signature, and she does not recall signing this document."

Woods' lawyer, Murray, stated, "One thing you did not hear Mr. Hodas say is that (Herman) did not sign it. They are not bold enough."

The judge did not state when she would give her written decision on the matter.

On May 17th Judge Elizabeth Metzger rejected Erica Herman's bid to dismiss the non-disclosure agreement with ex-boyfriend Tiger Woods and ordered the former couple to settle lawsuits seeking millions in damages through arbitration.

The Florida judge said claims of sexual harassment were not supported by documents requested by the circuit court.

In the opinion, Metzger denied the motion from Herman to void the NDA with Woods that originated in 2017, per the 11-page document.

Herman's attorney originally claimed no NDA was signed, then said in a hearing earlier this month there was a signed agreement, but it didn't match the version presented in court.

"Herman had the opportunity to provide factual specificity for any claim relating to sexual assault or sexual harassment, however, she has not done so," according to Metzger's ruling.

Herman met Woods as the manager of his Palm Beach restaurant and argued any NDA would cover only her work role and relationship with Woods, the owner.

Benjamin Thomas Hodas, attorney for Erica Herman, has filed an appeal with the Florida Fourth District Court of Appeals with the latest filing being on August 1st, 2023, for an Order Granting Extension of Time for Initial Brief to be filed by August 30th. Some reports say that the case was withdrawn, however, it is being appealed in a higher court.

Benjamin Thomas Hodas, applied for another Order Granting Extension of Time for Initial Brief to be filed by September 14, 2023. The order was granted August 31st.

Prior to this appeal an order denying plaintiff's motion for rehearing or reconsideration was handed down June 2nd, 2023. The Plaintiff made objections to the Defendant’s documents and declarations and asserted that none of the purported evidence on which the Court based the Order was admissible. The following were the arguments regarding the motion to compel arbitration.

• In the absence of admissible evidence, the Defendant could not meet his burden to establish the contract he seeks to enforce, and any uncertainties should have been resolved in favor of the Plaintiff.
• The U.S. Supreme Court has consistently held that a party cannot be forced to arbitrate without a finding that she agreed to do so, which means that in this case—with no evidence in the record—arbitration should not be compelled, or, at a minimum, an evidentiary hearing should be held.
• The Plaintiff did not concede the existence of an agreement to arbitrate, and the Court’s opinion that she did so just by seeking declaratory relief overlooks Florida statutory law and conflicts with Fourth District precedent.

Plaintiff’s Case
Complaint For Violation of Florida Residential Landlord Tenant Act

The Plaintiff: Erica Herman
Defendant: Jupiter Island Irrevocable Homestead Trust

1. Plaintiffs actual and consequential damages, in terms of the reasonable rental value of the residence, will be determined at the time of trial, but is likely to be measured in excess of $30,000,000, given the substantial monthly rental value of the Residence.
2. The Defendant, directly and through its agents, had a duty that was owed toward the Plaintiff to not conduct prohibited practices pursuant to § 83.67, Fla. Stat. The flagrant and purposeful violations and breaches of duty described above are the proximate cause of the Plaintiffs injuries for which they seek monetary damages which should be determined by a jury
3. Pursuant to § 83.67(6), Fla. Stat., Plaintiff is entitled to her actual and consequential damages, or 3 months rental value (whichever is greater), and/or injunctive relief pursuant to § 83.67(7), plus attorney' s fees and costs, demand for which is hereby made.
4. In addition and alternatively, by virtue of these violations, pursuant to §§ 83.55, 83.48, and 83.54, Fla. Stat., Plaintiff is entitled to civil relief for personal injuries these breaches/violations have caused, attorneys fees, and declarative/injunctive relief.
5. Wherefore, Plaintiff requests judgment against Defendant for actual and consequential damages, injunctive relief, together with attorney's fees and costs of suit, and such other and further relief as the Court may deem proper.

Complaint for Declaratory Judgement

The Plaintiff alleges that a trust controlled by Woods is alleged to be trying to silence Herman with a nondisclosure agreement that she signed while involved in a personal and professional relationship with Woods. The complaint argues that the NDA should be nullified under a federal law that prohibits an NDA from being enforced when sexual assault or sexual harassment is involved.The Plai

1. ntiff asserts that the Woods NDA is not judicially enforceable in this case under the federal Speak Out Act, 42 U.S.C. §§ 19401-19404
2. The nondisclosure agreement should be nullified.
3. Plaintiff requests judgment against Defendant granting the requested declaratory relief, together with attorney's fees and costs of suit, and such other and further relief as the Court may deem proper.

A party to a putative arbitration agreement might object that the entire agreement between the parties is void, illegal, or otherwise legally unenforceable.

The Supreme Court, however, determined that objections to the enforceability of the entire contract should be addressed to the contract arbitrator, not to a court. The Court applied the doctrine of severability. Pursuant to that doctrine, as a matter of substantive federal arbitration law, an arbitration provision is severable from the remainder of the contract.

Unless the ground for challenging the enforceability of the contract applies specifically to the arbitration provision itself (for example, if it is alleged that the arbitration provision, rather than the entire contract, was fraudulently induced), then the issue of whether the contract is enforceable will be referred to the contract arbitrator in the first instance.

Defendant's Allegations of the Suit and Pleadings

• Woods' lawyers want the court to determine that Herman's "landlord-tenant claims do not constitute a 'sexual harassment dispute.'"
• The assertions of the defendant are that the “trickery” never happened, there was no oral agreement and this suit is the result of sour grapes. 
• Tiger asserts that he told Miss Herman that she was no longer welcome in his home and that’s all that happened. 
• The suit should just be arbitrated as nothing illegal happened and there was no material breach or criminal acts that would negate the arbitration agreement.

The Defendant’s Case...to the greatest extent permitted by law

Woods' lawyers commenced an arbitration proceeding before the American Arbitration Association (AAA) on Jan. 26, 2023, however, the AAA placed the arbitration in abeyance after Ms. Herman argued that she cannot be compelled to arbitrate her claims before the AAA because her claims alleging breach of an oral tenancy agreement involve a sexual harassment dispute.

In the motion to compel arbitration the agreement is specifically written detailing that arbitration is to used by “the greatest extent permitted by law.” However, are torts, criminal acts and material breach subject to the same consideration as disputes that arise from mistake, changes in the law or miscommunication? 

Also, the agreement refers to "giving up any rights to a trial by judge or jury with regard to the matters which are required to be submitted to mandatory binding arbitration."

The assertions of the defendant are that the “trickery” never happened, there was no oral agreement and this suit is the result of sour grapes. Tiger asserts that he told Miss Herman that she was no longer welcome in his home and that’s all that happened. The suit should just be arbitrated as nothing illegal happened and there was no material breach or criminal acts that would negate the arbitration agreement.

Problems with the Defendant's Case

At minimum, under the Federal Arbitration Act (FAA) for a tort claim to be subject to arbitration under a broad arbitration clause, it must raise some issue the resolution of which requires reference to or construction of some portion of the parties' contract. Where a tort claim is independent of the contract terms and does not require reference to the underlying contract, arbitration is not compelled. 

While a party cannot, under the FAA, avoid the broad language of an arbitration clause simply by casting its complaint in tort rather than contract, arbitration of a tort claim is only compulsory where the tort claim arises directly out of a dispute regarding the terms of the parties' contract. The claims of Ms. Herman are essentially tortious and not the result of a dispute in the construction of the oral or written contracts and injunctive relief is being sought. Information Technology & Engineering Corp. v. Reno, 813 So. 2d 1053 (Fla. 4th DCA 2002).

The Speak Out Act

42 U.S.C. §§ 19401-19404

The act’s definitions of “nondisclosure” and “non-disparagement” agreements are wide. Any agreement or clause in an agreement that compels parties “not to disclose or discuss conduct, the existence of a settlement involving conduct, or information” related to the contract qualifies as a covered “nondisclosure clause.” Any agreement or clause that demands one of more parties to “not make a negative statement about another party that related to the contract, agreement, or case” is a covered “non-disparagement clause.”

The act does not prohibit the use of these clauses. Instead, it renders them judicially unenforceable in disputes involving sexual harassment and sexual assault. The terms “sexual assault dispute” and “sexual harassment dispute” are defined as disputes concerning nonconsensual sexual acts or contact or conduct that is alleged to constitute sexual harassment as those terms are distinguished under applicable federal, tribal, or state law.

The act will “apply with respect to a claim that is filed under Federal, State, or Tribal law on or after December 7, 2022.” The act plainly provides that nothing in it prohibits states or localities from enacting more protective laws related to nondisclosure or non-disparagement clauses or bars employers from protecting trade secrets or proprietary information.