Thoughts on Bernie Sanders Complaint Against DNC on Data Access

I have posted here the complaint in Bernie 2016 v. DNC Services Corporation. Here is Exhibit A, the agreement.

The complaint and exhibit basically make the following argument:

The agreement between the DNC and the Sanders campaign required the DNC to provide professional services and did not require the campaign to maintain the confidentiality of data. The DNC is the one who revealed the confidential data.

Even if the Sanders campaign’s access to confidential material could be considered a breach of contract, the contract does not allow the DNC to suspend its performance immediately.  Instead the contract requires that the DNC give written notice of the Sanders breach, which hasn’t been given, and give 10 days to try to cure the breach.

DNC’s cutting off access to the data is causing irreparable harm to the campaign, which cannot conduct its voter outreach and fundraising during a crucial time. Given this potential for irreparable harm, the Sanders campaign will seek an emergency injunction (a temporary restraining order, or TRO) to require the DNC to restore access. This would be an argument for specific performance of the contract.

A few very preliminary thoughts on this argument:

  1. It is always perilous to figure out how strong a case is from seeing just one side’s pleadings. We may not have all the relevant documents, or access to all the relevant information, to make a determination as to who is right or wrong. For example, Exhibit A-1, which is part of an agreement with the Iowa Democratic Party, appears to allow for immediate suspension of the agreement and injunctive relief under certain circumstances. It is not clear how this fits into general agreement.
  2. Despite caveat 1, on its face the Sanders complaint seems plausible. It does look like in the original complaint that the DNC would have to give written notice of a breach and give 10 days before treating the contract as terminated. Further, the Sanders side has a very good argument for irreparable harm, especially at this point in the campaign. If it has a good legal argument, it has a compelling argument for quick action.
  3. There may be a good argument on the DNC’s side that they had the right (perhaps under the Exhibit A-1 provisions on injunctions and irreparable harm) to SUSPEND the Sanders’ campaign access if the Sanders’ campaign’s access constituted a substantial breach of the contract. The DNC could face irreparable harm, for example, if the Sanders’ campaign’s access to confidential materials would cause the DNC to be breaching its obligations to other campaigns. Accessing confidential data by Sanders campaign could violate the parties implied covenant of good faith and fair dealing.
  4. The bottom line: this looks to be a serious claim from the Sanders campaign, but it is hard for me to say whether or not it is a winner until we see more briefing and further factual development.


UPDATE: Bill McGeveran questions whether the federal court has jurisdiction over this claim. That’s a good question. It may have to go to local DC court.

I should add that putting aside the legality of the DNC’s moves, it seems unwise, punitive, and draconian. This, and the deliberately lousy debate timing, reinforces the notion that DNC is favoring Hillary Clinton.

[This post has been updated, and I may update more as I have the chance to read through the complaint and documents more closely.]


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