Cosby lawyers to judge: Make Constand give back the secret settlement money

Lawyers for Andrea Constand urged a federal judge Friday to throw out Bill Cosby's bid to make her return the money he paid her a decade ago to settle sexual-assault claims.

In a hearing before U.S. District Judge Eduardo Robreno in Philadelphia, the attorneys, Dolores Troiani and Bebe Kivitz, denied allegations by Cosby lawyers that Constand breached a confidentiality clause in the 2006 settlement with the entertainer when she helped prosecutors build a case against him.

They said Cosby was the one who first violated the settlement, and suggested that his breach-of-contract lawsuit was intended to have a "chilling effect" on Constand before she testified at his trial in Montgomery County.

"If it's a breach of agreement for her, then he certainly breached it first," Troiani said.

But Cosby's lawyers defended his right to sue his accuser despite the charges he faces.

"He has a strong interest in making clear he intends to enforce this agreement," lawyer Samuel Silver said.

The lawsuit, filed in February, is just one side battle in the 78-year-old comedian's aggressive legal response to claims by dozens of women nationwide that he drugged and sexually assaulted them over decades. Cosby has filed defamation countersuits against accusers in Pittsburgh, Massachusetts, and California, even while awaiting his criminal trial in Norristown.

Details of Constand's settlement, including how much money Cosby paid her, have never been made public. Neither attended Friday's hearing.

Robreno did not issue a ruling. But the judge, who has never seen the details of the settlement, seemed inclined to let the litigation move forward at least on some of Cosby's claims.

"Does this depend somewhat on who spoke first and who spoke second?" he asked the lawyers. "Isn't there an allegation that the agreement was mutually abandoned, therefore freeing the other party to speak?"

He also appeared conflicted on how to let the case proceed without impacting the criminal trial. Cosby's lawyers want to prevent their client from being deposed until after the Montgomery County charges are resolved.

They argued that Constand, as a Canadian citizen who now lives in Toronto, had no obligation to cooperate with U.S. prosecutors. They also said that under the settlement, Constand was required to notify Cosby before speaking to anyone about her allegations that he drugged and assaulted her in his Cheltenham home in 2004.

"I think it's fair enough to say that [the confidentiality agreement] covers everything under the sun," Silver said.

Troiani maintained, however, that the settlement specifically addressed situations in which law enforcement asked either party to keep silent about an ongoing investigation. When Montgomery County prosecutors approached her and Constand last year, she said, they made such a request.

Cosby has also named Troiani, Kivitz, and Constand's mother, Gianna, as defendants in the breach-of-contract case. Cosby accuses all three of inviting news coverage of the case and cooperating with investigators even though they, too, had signed confidentiality clauses as part of Constand's civil settlement.

The hearing came a week before Cosby is due back in a Norristown courtroom, this time in a bid to force Constand to testify prior to his trial on sexual assault charges.

In May, prosecutors persuaded a district judge to approve Cosby's case for trial using only transcripts of her original 2005 interviews with Cheltenham police.

jroebuck@phillynews.com 215-854-2608 @jeremyrroebuck