As Ed noted last week, there was some question whether or not a lawsuit against Prince Andrew by Virginia Giuffre (formerly Virginia Roberts) could proceed because of some language in a settlement she made with Jeffrey Epstein back in 2009. At the time, Giuffre received a $500,000 settlement and agreed not to sue anyone connected to Epstein. And given Prince Andrew’s connections to Epstein it seemed likely to law professor Jonathan Turley that the case against Andrew would be dismissed.

But life is full of surprises and Prince Andrew is getting one today from the New York judge who refused to dismiss the case against him.

His lawyers had argued that Ms Giuffre agreed in court in 2009 not to sue anyone else connected to Epstein when she settled her damages claim against the billionaire sex offender.

During a virtual hearing they said the Duke of York was a “potential defendant” as defined by the agreement and the case “should be dismissed”.

Ms Giuffre’s lawyer said only the parties of the settlement agreement could benefit from it, and not a “third party”.

In his decision, Judge Kaplan said the agreement “cannot be said” to benefit the Duke of York.

The judge’s full decision not to dismiss the case is here. Looking over it (with the caveat that I am not an attorney) the core of the argument is whether the 2009 settlement covered Prince Andrew as a “potential defendant.” Andrew’s lawyers say he was a potential defendant because the settlement even mentioned abuse by “royalty” though it did not mention Andrew by name.

Virginia Giuffre’s lawyers argue that Andrew could not have been covered by the settlement because he was not a potential defendant under the Florida statute at hand. Giuffre has alleged she had sexual contact with Andrew on three occasions, once in London, once on Epstein’s private island and once in New York. She has not alleged any illegal behavior by Andrew in Florida.

Furthermore, the judge’s decision points out that the settlement was over allegations that Epstein had trafficked Giuffre as a minor. Therefore a “potential defendant” would have to be someone who could potentially be charged under the same law:

The crux of the Florida case was that Epstein harmed Ms. Giuffre by trafficking her for sex with himself and with others. Indeed, defendant’s counsel made clear at oral argument his view that the complaint against Epstein was that Epstein “trafficked [Ms. Giuffre} to a number of individuals, forced her into sex slavery, and forced [her] to have sex or be sexually abused by many people, including members of academia, including businessmen and the category of royalty.” Yet there is no suggestion in the Florida case that this defendant was himself engaged in sex trafficking.

In other words, the settlement could be seen as protecting those who’d similarly trafficked Giuffre, i.e. perhaps Ghislaine Maxwell, but could not excuse those who weren’t potentially defendants as traffickers. Ultimately, the judge concludes that there is enough of a reasonable legal argument for either the defendant or the plaintiff’s view of the 2009 settlement that the case against Prince Andrew should not be dismissed.

This decision sets up a civil case against Prince Andrew in New York sometime in the fall. If that happens then Andrew would have to appear and defend his claims in court. But the BBC’s legal analyst says it’s hard to imagine that happening:

It’s hard to imagine the royal family would want to see a bruising cross-examination in a New York courthouse.

That could mean an out-of-court settlement. But that’s not the best look either, leaving the allegations unresolved.

Granted, a settlement doesn’t look good but if it’s a choice between that and actually defending this mess in public it’s hard to imagine the Prince would opt for the latter. After all, his last attempt to defend himself in the court of public opinion was widely deemed a train wreck. At the time, Ed called it a “legendary cautionary tale in public relations.” I doubt Andrew is up for more of the same but with questions thrown at him by a lawyer. My guess is he’ll settle and keep himself out of sight for a long while.