Michael Avenatti. AP Photo: Mark Lennihan

A Manhattan federal judge is expected to hear arguments Tuesday afternoon on motions by Michael Avenatti to exclude key evidence and testimony from his upcoming trial on charges that the embattled attorney tried to extort Nike Inc. for about $25 million.

In a series of court filings, Avenatti's lawyer, Scott Srebnick, has asked U.S. District Judge Paul Gardephe of the Southern District of New York to block prosecutors from telling a jury about Avenatti's financial condition at the time of his alleged crimes, as well as to exclude expert testimony and evidence involving "settlement" talks he had with attorneys for the athletic apparel giant.

Among the evidence targeted in the motions in limine was information regarding Avenatti's debts—which included money he owed on a Ferrari, a Porsche and an airplane; a $5 million personal judgment against him and a loan he had taken from fellow attorney Mark Geragos.

Prosecutors believe that the evidence will help to establish Avenatti's motive in carrying out the alleged shakedown of Nike in March 2019, while he was working for a youth basketball coach who claimed to have damaging information about the company.

According to the indictment, Avenatti threatened to go public with the allegations unless Nike agreed to pay about $25 million to settle the claims and hire Avenatti and Geragos to conduct an internal investigation. Prosecutors last month dropped conspiracy charges against Avenatti but added one count of honest services wire fraud related to his representation of the coach, Gary Franklin.

Trial in the case is scheduled to begin Jan. 21.

Avenatti has claimed that he was simply acting as an attorney on behalf of his client, and said the evidence at issue was irrelevant to the question of motive. Should it be presented to the jury, Srebnick argued, the government's evidence would prejudice the jury and would "serve no purpose other than to distract" from the central issues of the case.

"The probative value of Mr. Avenatti's financial spending prior to the alleged conduct and his financial condition at the time of that conduct, is far outweighed by the danger of unfair prejudice," Srebnick and Jose M. Quinon wrote in the 11-page filing Dec. 10.

Also at issue are discussions Avenatti had with Nike attorneys that he said were intended to reach a settlement of Franklin's claims. According to court papers, Avenatti enlisted the help of Geragos, who knew Nike's general counsel from his earlier representation of Colin Kaepernick, a former NFL quarterback and Nike-sponsored athlete who had recently settled a lawsuit against the NFL.

Avenatti said the initial meeting—and a subsequent phone call, which was recorded by the Federal Bureau of Investigation—was covered by a "litigation privilege" protecting attorneys from civil liability for statements made in the course of litigation. Federal courts, he said, had also recognized a carve out from criminal liability for pre-suit communications that involve a threat to sue, regardless of the underlying merits.

"Absent such a privilege, lawyers will be incentivized to surreptitiously audio-record each other and participating neutrals during settlement conferences in contravention of the spirit of such meetings, with the hope that one side will be able to leverage statements made during those meetings against the opposing party and counsel," Avenatti's attorneys argued.

Finally, Avenatti has asked Gardephe to nix the planned testimony of a Stanford law professor and a Cooper, White & Cooper partner, who prosecutors plan to call as witnesses at trial.

According to court documents, the experts are expected to testify that Avenatti, whose practice was based in Newport Beach, California, had violated California state bar rules by using Franklin's confidential information for his own benefit, without first consulting his client.

Avenatti has challenged assertions that California bar rules are even relevant in the case, and claimed that the testimony was inadmissible because it amounts to a legal conclusion that could improperly sway the jury.

Avenatti said Gardephe could exclude the testimony without the need for a hearing. However, if the testimony is deemed proper, Avenatti said he should have the chance to assess the reliability of the experts' opinions and to challenge the admissibility of the testimony.

A status conference in set for 12:30 p.m. Tuesday.

Attorneys for Avenatti did not return calls Monday afternoon seeking comment on the motions.

Avenatti is also accused in Manhattan of stealing $300,000 in book-advance payments to his client and adult film star Stephanie Clifford, known as Stormy Daniels, who said she had engaged in an extramarital affair with President Donald Trump, a charge that the president has repeatedly denied.

A Manhattan federal judge in September declined to fold the case into a larger prosecution in California, where Avenatti stands accused in a sprawling indictment of stealing millions of dollars from his other clients. Trial in that case is set to begin in April.

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