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Case 1:20-cr-00330-AJN Document 142 Filed 02/04/21 Page 20 of 38 A. Ms. Maxwell Has Standing to Enforce the NPA. The Second Circuit has long recognized that plea agreements may include promises of leniency for third parties. See, e.g., United States v. Clements, 992 F.2d 417, 419 (2d Cir. 1993) (“it is now clearly established in the Second Circuit that the government may impose conditions which relate to the conduct or treatment of others”); United States v. Marquez, 909 F.2d 738, 742 (2d Cir. 1990) (“Since a defendant’s plea is not rendered involuntary because he enters it to save himself many years in prison, it is difficult to see why the law should not permit the defendant to negotiate a plea that confers a similar benefit on others.”), cert. denied, 498 U.S. 1084 (1991). Yet the government has taken the position that such promises are effectively unenforceable by any third party who is not specifically identified by name. Fundamental principles of contract law contradict the government’s position, regardless of whether the Court applies the law of New York or that of Florida, where the NPA was negotiated and performed. Both states’ laws permit enforcement of a contract by a third-party beneficiary where the parties to the contract intended to confer a benefit on the third party. Subaru Distribs. Corp. v. Subaru of Am., Inc., 425 F.3d 119, 124 (2d Cir. 2005) (applying New York law); Bochese v. Town of Ponce Inlet, 405 F.3d 964, 982 (11th Cir. 2005) (applying Florida law). Moreover, “[a]n intention to benefit a third-party may be gleaned from the contract as a whole and the party need not be named specifically as a beneficiary.” Chen St. v. Street Beat Sportswear, Inc., 226 F. Supp. 2d 355, 362 (E.D.N.Y. 2002) (emphasis added) (holding that garment workers had standing as third-party beneficiaries to enforce wage compliance agreement between Department of Labor and clothing manufacturer that contracted with their employer); Florida Power & Light Co. v. Mid-Valley, Inc., 763 F.2d 1316, 1321 (11th Cir. 1985) (“Florida courts have long recognized that a third party beneficiary need not be named in the contract”). 15 DOJ-OGR- 00002592