Avenatti to Nike: ‘Puffery and Posturing’ Are Not Illegal — Plus More Explosive Details From His Latest Court Filing

Michael Avenatti’s legal team said his alleged attempts to extort Nike, Inc. were “not ‘wrongful'” in a motion to dismiss filed Monday in New York’s Southern District court.

In the filing, Avenatti’s lawyers, Scott Srebnick and Jose Quinon, say he “accepts as true…allegations that he threatened and intended to cause reputational damage and serious economic harm” to Nike. However, Avenatti argues that the information he threatened to expose was both true and relevant to a case a client of his was pursuing against the Swoosh, thus making his behavior legal.

The attorney, who rose to prominence for representing adult film star Stormy Daniels against President Donald Trump, was indicted in May for allegedly trying to extort $22.5 million from Nike. Avenatti claims Nike made illicit payments to student athletes, among them No. 1 overall NBA Draft pick Zion Williamson. (A separate federal investigation pertains to Nike’s involvement with grassroots basketball.)

Below, five major things we learned from the latest court filing.

Avenatti met with Nike three straight days in March.

From March 19-21, Avenatti was in communication with Nike three consecutive days — and his asks kept getting bigger.

 March 19: Avenatti allegedly wanted $1.5 million for his client, and for Nike to either hire him to conduct an internal investigation or to pay him and fellow attorney Mark Geragos at least twice the legal fees of any other firm hired.

March 20: Avenatti allegedly asked he and Geragos be retained by Nike and paid a minimum of $10 million (his request of $1.5 million for his client reportedly stayed constant).

March 21: His alleged demand was for a $12 million retainer, with $15 million guaranteed and a max of $25 million. The Nike attorney allegedly asked if claims could be settled by paying only the client, which is when Avenatti made the $22.5 million ask that’s been widely reported.

Avenatti admits he threatened to harm Nike with his press conference.

In the indictment against Avenatti, the government claims he “threatened and intended to cause reputational damage and serious economic harm” against Nike if the company did not meet his demands. For the purpose of the filing, Avenatti admits he planned to expose Nike’s payments to student athletes in a press conference if payments were not made. (He threatened to hold the conference on March 21, the same day as the brand’s Q3 earnings call and the first day of the NCAA basketball tournament.)

He says he’s being charged with a “speech crime.”

In the filing, Avenatti’s attorneys argue that all charges against him are “independently lawful and independently protected by the First Amendment.” Srebnick and Quinon say their client was allowed to demand a settlement for his client (even if on over-the-top terms) and to demand an additional attorney’s fee for himself.

Additionally, they argue, Avenatti was within his rights to publicly come forward with “truthful information” about Nike — whereas the Swoosh “had no inherent right to be free from exposure of its own misconduct.” In the new filing, they make the case that the combination of Avenatti’s acts don’t rise to the level of extortion.

He says the “extraordinary” size of his ask doesn’t make it illegal.

Srebnick and Quinon make the argument that “puffery or posturing” is common practice among attorneys, who often demand more money than they reasonably expect to get. While the $22.5 million is a figure that “may seem extraordinary to some,” they say Avenatti was within his legal rights to ask for any amount of payment.  Thus, the filing argues, the sheer size of the request “does not and cannot render the conduct ‘wrongful.'”

 He doesn’t expect his case to come to an easy end.

While Srebnick and Quinon filed a motion to dismiss on Monday, they don’t expect the government to drop the charges so easily. In the filing, Srebnick said he exchanged emails with government officials who indicated they would oppose Avenatti’s motion to dismiss and did “not believe the defendant is entitled to the discovery he seeks in the motion.”

The government has three days to respond dating from Aug. 19 (barring an extension.)

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