Marion Brown, a former staffer to disgraced Congressman John Conyers, broke her non-disclosure agreement and spoke about the harassment she endured in Conyers’s office. She’s not the first woman to break her NDA in order to speak out against sexual harassers. We’ve detailed how Zelda Perkins broke her NDA to come forward against Harvey Weinstein.
The onus isn’t on victims to break their contractual obligations to hold sexual assaulters and harassers to account. But I do think that we’re all learning how non-disclosure agreements are used by powerful men to intimidate women into silence. In fact, we’re seeing how the NDA allows men to essentially commodify their sexual assaults, the same way some sports-car owners view a speeding ticket as part of the cost of the car.
So, this seems like a good time to remind people that an NDA is not a law of nature. It’s not a law of physics. It’s a law of man and, thus, it can be broken. It’s just a contract. People BREACH CONTRACTS all the goddamn time, breaching a contract is literally part of the cost of doing business.
No matter what some lawyer trying to intimidate you tells you, people don’t generally go to jail for breaching contracts. And sure, fines and poverty can feel like jail, but you’re not doing prison time for violating your nod, nod, pinch, pinch deal with a hands-y movie star.
Usually, the breaching party pays damages. But even that’s only in an environment where the NDA is deemed enforceable.
Given the current climate, enforcing one of these “I groped you now STFU about it” NDAs is far from a slam dunk. The disclosing party would have some defenses. The Association of Corporate Counsel has a very good article up about the potential weaknesses in enforcing an NDA. Remember, in-house attorneys are most often on the drafting NDAs and getting them enforced on employees. Yet, even they know that these NDAs are rarely ironclad.
Here are some top things to remember when dealing with a sexual predator who has signed you to an NDA:
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- The predator has to show actual injury: Being first out of the gate is probably very dangerous. But if you’re second? Or thirteenth? Or twentieth? At some point it’s going to be hard for the alleged sexual predator to argue that your allegations of sexual misconduct “damaged” his reputation even more. Good luck making that showing: Weinstein, Cosby, Spacey, Lauer, and the three other guys who probably had to resign while I was typing this sentence.
- The information disclosed has to be, in fact, secret and confidential: As some of these guys have been outed, they’ve admitted to past “inappropriate behavior.” At that point, a sympathetic court might find that a disclosure about inappropriate sexual behavior is no longer secret and thus the NDA is non-enforceable.
- Courts will consider public policy considerations: Granted, this enforcement exception is more there so Pussy Galore can say “I violated this NDA to tell you that the project Grand Slam is actually about making the U.S. bullion reserve radioactive.” It’s not there so Moneypenny can say “MI6 doesn’t want you to know how their rapey double agents really get their information.” But still, in this moment, public policy is not on the side of keeping women silent while sexual predators go about their business.
- Courts will consider UNEQUAL bargaining power: In front of the right court, a showing that a victim who signed the NDA was in a vastly inferior bargaining position to the alleged assaulter who made her sign it, could render the whole agreement unenforceable.
None of these defenses to a breach of a non-disclosure agreement are a slam dunk. Courts, generally, like enforcing contracts, not shredding them. And there are lots of entirely legitimate reasons for making people sign an NDA. I could absolutely see a court saying “The Colonel’s recipe must be protected at all costs! Trebel damages!”
This is also good time to mention that I’m contractually obligated by the state of New York to tell you that none of this is legal advice. For the purposes of this (and most) articles, treat me no better than a random street person trying to hand you a coupon at a stop light.
But… COME ON, people. The NDA was never met to shield sexual harassers. If you are a celebrity, you make the babysitter sign an NDA so she can’t post pictures of your house on Instagram, not so you can grope her and keep her from telling anybody. The NDA is supposed to protect trade secrets, not Matt Lauer’s secret rape button.
If you’ve signed a non-disclosure agreement, it’s a risk to violate it. You might get sued, you might be forced to pay back some money.
Or you might set liberating case law that allows more of these claims to come forward.
In any event, there are a lot of sexual predators who think they are safe because all their real dirt is protected by an NDA, but I don’t think the President should be so smug about it.
Elie Mystal is the Executive Editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at [email protected]. He will resist.