Trump Campaign Non-Disclosure Agreements Again Being Challenged In Court

from the boilerplating-people's-mouths-shut dept

President Trump is fond of non-disclosure agreements. He’s been this way for far longer than he’s been president, but his insistence on foisting them on anyone who has worked for him has become problematic now that he’s the ultimate public figure.

Some of these NDAs have been broken inadvertently during the course of dubious lawsuits filed by former Trump associates against journalists. In other cases, the DOJ itself has gotten involved, trying to invoke possibly non-existent agreements with the government to block publications by former Trump staffers.

Now, a former Trump campaign staffer is in court challenging the legality of the NDA she signed when managing phone banks for Trump before moving up to be his director of Hispanic engagement. She argues the NDAs serve no purpose but to block speech critical of her former employer. (Non-paywalled version here.)

In the complaint, Ms. Denson’s attorneys argue that the campaign’s nondisclosure agreement, which all staffers were required to sign, “is wildly broad, prohibiting a vast array of speech about a candidate for the highest office and the current President of the United States—forever. And the campaign has repeatedly invoked its prohibitions in an effort to chill truthful political speech it dislikes.”

As is the case with any agreement, people can voluntarily give up some of their rights (in this case, free speech) in exchange for employment. But there’s more to it than simply preventing the release of any information Trump might want to remain secret. It also says everyone who signed one must continue to play nice in perpetuity.

[I]t contains a nondisparagement clause that prevents staffers from ever demeaning or disparaging the president, his family or his companies.

Denson is arguing this violates the state’s contract law, as well as her free speech rights under both the New York constitution and under the First Amendment. And it will probably be greeted with a strong defense from the Trump campaign, given the fact that Denson has already sued the Trump campaign for allegedly subjecting her to sexual discrimination and slander. That lawsuit, filed in 2017, has led directly to this legal challenge of the NDA itself, which Trump lawyers say Denson violated when she filed her discrimination lawsuit.

NDAs may be common but they’re never as necessary as those forcing them on employees think they are. Campaign staffers may have access to a lot of information candidates may not want to see released, but a lifelong gag isn’t the only way to handle this. The Wall Street Journal reports the Biden campaign does not require staffers to sign NDAs, indicating it’s possible to run a presidential campaign without swearing everyone to secrecy.

If this challenge is successful, it will be a nightmare for Trump and his campaign team. Very rarely has any former staffer or employee stepped forward with anything positive to say about the President. The criticism tends to flow faster now, given the turnover rate in the White House. Not every NDA is foisted on employees by bad employers, but a lot of them are. And when the employer ends up being the leader of the free world, it makes little sense for the man up top to continue to insist former employees can’t have full access to their rights.

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Comments on “Trump Campaign Non-Disclosure Agreements Again Being Challenged In Court”

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28 Comments
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Avantare (profile) says:

NDA's

I understand why they exist and their significance as I have had to sign a few during my career.

READ and UNDERSTAND it thoroughly before you sign. If you don’t understand what it wants you to agree to then pay a lawyer for their professional opinion on it if you feel the need to.

I wish her well and hope for the best with contesting the NDA as seeing what I’ve seen of this administration it needs to be investigated in every way that can possible happen.

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Anonymous Coward says:

The real question he wanted added to the Census

So the real question the President apparently would have liked to be able to ask in the Census:

Will you swear undying loyalty to the Donald, now and forever, and never be mean to or hurt the Donald’s feelings? If not then get the hell out of MY COUNTRY and never come back. (response not optional)

said an anonymous Trump staffer (who was sworn to secrecy by an NDA, which was obviously taken seriously and is why you will not hear this specific rumor from anyone else, as they can’t confirm it…)

Scary Devil Monastery (profile) says:

Re: The real question he wanted added to the Census

"Will you swear undying loyalty to the Donald, now and forever, and never be mean to or hurt the Donald’s feelings? If not then get the hell out of MY COUNTRY and never come back. (response not optional)"

Ah, so those are the "conservative values" biased against by the evil, evil social media?

This comment has been deemed insightful by the community.
That One Guy (profile) says:

Imagine that...

Funny that, the same person that was whining about social media ‘silencing’ conservatives appears to have no problem whatsoever actually silencing people and preventing them from saying anything he might personally object to.

Why, you’d almost think that the problem he had wasn’t restrictions on speech but that they were ‘silencing’ the wrong group…

Koby (profile) says:

Non Compete

I seem to remember a situation years ago where the state of Massachusetts was predicted to be the hot new tech center. However, MA enforced its non compete agreements, while CA did not. 20 years later, and we now know that all the entrepreneurs ditched MA for CA, largely because of the non compete issue. From a tax revenue standpoint for the state government, this has probably been one of the biggest blunders within our lifetime.

So it makes me wonder if a similar loss of campaign staff quality might be experienced in 2020, due to the NDA?

Scary Devil Monastery (profile) says:

Re: Non Compete

"So it makes me wonder if a similar loss of campaign staff quality might be experienced in 2020, due to the NDA?"

I sort of have to ask the question what makes you think Trump had any form of staff quality to begin with? Selling shoddy shit at too high a price and walking out on the cost is what he’s been doing for 40 years. All he really needs is a sufficiently gullible audience and a cadre of yes-men to carry stuff and lick his shoes clean every morning.

You could argue, successfully, that if he had any viable competition he’d have been out at the primaries.

But look at the current GOP, and what they – apparently honestly – tried to put against him. And then look at the DNC. With most of the US so disgusted even holding their noses was too hard a job, no wonder he slid through carried on the shoulders of the Very Fine People who had every right to believe "Die fahne hoch" might become the new anthem under Trump.

sumgai (profile) says:

It is my thought that even the financial backers of a given candidate might want to know more than just the usual BS the candidate has been feeding him/her all along. So it would follow that the solution is obvious: unless violating the terms of the NDA involves a quiet (and permanent) disappearance in the middle of the night, then go ahead and blab. When they try to enforce the agreement, just declare bankruptcy. After all, they can’t demand in return for your agreement that you owe them anything else besides money. (In all of the jurisprudence I’ve ever seen, monetary compensation is the only acceptable recompense for a tort. If my experience is too limited, please feel free to enlighten me.)

The proper argument to present in court is that NDA’s were constructed to protect business secrets, usually those learned by an employee that then went to work for a competitor for whatever reason. But nearly all courts have struck down NDA’s with no time limit, the usual accepted limit being 3 to 5 years. I can’t imagine that after a campaign has run its course, anything would be damaging to the desired results of said campaign (the successful election of the candidate), so a time limit beyond that scope would be highly suspect of attempting to squelch one’s right to speak freely.

Speaking of "giving up free speech", this isn’t a governmental dictum (nor a court order), so one is still free to speak, but for the pain of potential monetary loss.

tl;dr:
The courts take a dim view of one party trying to suppress another party’s speech long after the reason for that suppression has lost its value.

Tanner Andrews (profile) says:

Re: Re:

When they try to enforce the agreement, just declare bankruptcy. After all, they can’t demand in return for your agreement that you owe them anything else besides money. (In all of the jurisprudence I’ve ever seen, monetary compensation is the only acceptable recompense for a tort. If my experience is too limited, please feel free to enlighten me.)

Well, full enlightenment may be a bit beyond my pay grade, but let us have a few rays of light.

Initially, tort has nothing to do with it. Your vast experience in tort is thus largely unhelpful. A non-compete agreement is a contract, and any action will sound in contract.

From the above, it follows that the offended employers are not remitted to tort remedies. You may be subject to injunction (and from that, contempt) for failure to abide by your agreement. This will not be affected by bankruptcy (BK) .

What may limit offended employers’ remedies is the law of the relevant state. Many states require that non-compete agreements be appropriately limited in scope, duration, and area. You will probably want to talk to someone in your state before entering into such an agreement. Or, if it is too late for that, at least talk to someone before you take action which may constitute breach.

If an employer’s injury can also be liquidated, either in the contract or through court action, you may be liable for money. Depending on the timing of the BK, you may not be able to discharge the damages award.

If you are able to discharge the damages, it may be through sales of your property, with distributions to your creditors. In any event, the BK will hang around on your credit for some years, which may have other deleterious effects.

Before you file BK, talk to someone who handles such cases, which is most certainly not me.

sumgai (profile) says:

Re: Re: Re:

I’m sorry, I didn’t make it clear (at all) that I personally don’t like, nor do I easily advocate, bankruptcy for all the reasons you indicate. But I had hoped that my reasoning would’ve been obvious, that one can indeed hew to higher principles and expose the dirty laundry, even if doing so might might endanger one’s equilibrium in life.

Where I come from contract law is based on the very definition of tort – that of a harm, or an alleged harm, to the offended party. Contract law, and the ensuing contracts springing therefrom, is a an attempt to apply uniformity to the enforcement of contracts, with varying results. Said variances being negotiated and adjudicated by the courts.

FWIW, an injunction against further offending conduct is not considered a punishment or a form of recompense, it is merely a stemming of behavior that might continue to cause damage, that’s all. Yes, courts can impress upon you a more harsh remedy for failure to abide by any such injunction, however, such a remedy will inure not to the offended party, but to the court itself. You can be sure that no contract will stand that implies that a court will automatically grant the offended party’s wish for non-monetary recompense.

I think you’ll find that nearly every state has laws on their books that closely follow the definitions found in Horn’s Second Restatement of Torts. Much of contract law is based on this very tome, though certainly not all of it. You can easily discern this for yourself by perusing your state’s version of the U.C.C.

And finally, my experience is certainly not vast. All I did was ask if others had differing experiences in their law careers. Times do change, and it’s been a long time since I occupied a chair in a law office.

sumgai

Tanner Andrews (profile) says:

Re: Re: Re: Re:

Where I come from contract law is based on the very definition of tort – that of a harm, or an alleged harm, to the offended party.

Well, in the U.S., this is not the case. Here, contract is entirely separate. Sure, we have statutes covering many of the common tort claims, but generally you are remitted to money damages or occasionally return of property. We also have statutes covering some aspects of contract.

The case you might remember from law school is Lempke v. Dagenais, 547 A.2d 290 (NH 1988), where they somewhat explain the difference between tort and contract claims. In Florida, you might also look at Navajo Circle v. Development Concepts, 373 So.2d 689 (2DCA 1979).

One key difference between tort and contract is that you are more likely to see an injunction in contract. In tort claims, well, the classic case is Willing v. Mazzocone, 393 A.2d 1155 (Pa. 1978), but I also like E360 Insight v. Spamhouse Project, 500 F.3d 594 (US 7th Cir. 2007). But in a non-disclosure agreement (contract), you might get an injunction.

Scary Devil Monastery (profile) says:

Re: Re: Re: Re:

"Where I come from contract law is based on the very definition of tort – that of a harm, or an alleged harm, to the offended party."

One of the first things you learn looking at contracts – at least in Europe – is that US law is different. Drink that in. In most places in Europe, for instance, quite a lot of the boilerplate gets covered with standardized incoterms, consumer protection laws, commercial regulation law etc – leaving stuff like liability and accountability claims to be handled by the agreement.

And the difference is staggering when you compare the boilerplate contract template of european industry against, say, the boilerplate template booklet of delivery terms offered by a US company.

US tort law especially, tends to be byzantine. There’s a reason no one in the US should do ANY business without a lawyer.

nasch (profile) says:

Re: Re:

just declare bankruptcy

Just? Your credit will be ruined for (I think) seven years. No new loans (credit card, car loan, mortgage, refinance, probably student loans though not sure on that), good luck signing a rental property lease, potential employers will see it in your background check, and probably other issues I’m not thinking of. It is not something to be undertaken lightly.

tz1 (profile) says:

There's the Tech platform argument

Muh private company. If you don’t like it, then don’t “agree” to it.

The government can’t limit your speech, but you can agree to do so voluntarily.

I would like this can of worms opened though. All the forced arbitrations, all the lawsuits like Bill O’Reilly’s harassment settlements, the Planned Parenthood wrongful death settlements.

All are hush money. They agree not to discuss the details of the settlement, often how much they got to drop the case.

Sunshine is the best disinfectant and the crony corruption court “agreements” are more sickening than Covid.

tz1 (profile) says:

There's the Tech platform argument

Muh private company. If you don’t like it, then don’t “agree” to it.

The government can’t limit your speech, but you can agree to do so voluntarily.

I would like this can of worms opened though. All the forced arbitrations, all the lawsuits like Bill O’Reilly’s harassment settlements, the Planned Parenthood wrongful death settlements.

All are hush money. They agree not to discuss the details of the settlement, often how much they got to drop the case.

Sunshine is the best disinfectant and the crony corruption court “agreements” are more sickening than Covid.

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Anonymous Coward says:

Re: There's the Tech platform argument

Wow, something we can agree on. Unexpected.

Screw NDAs. Most of them anyway. NDAs for some things are necessary and appropriate (gamers testing pre-alphas of games, employees exposed to proprietary info, etc) but most others are garbage. Not sure how to structure the test for which is which though.

This comment has been deemed insightful by the community.
Anonymous Coward says:

Re: Re: There's the Tech platform argument

I’ve been offered positions that involved NDAs before. With only a few exceptions, they were poorly thought out, badly written, and arguably overbroad. I’m not a lawyer, and even I could see these things.

If you REALLY wanted that position, maybe you’d sign it. But I had to turn one down where the NDA could easily be interpreted "you can’t work in this INDUSTRY again for X time, unless you’re doing so for us." That company was, though, okay with farming the job out to a subcontractor who was happy to drop the NDA for simple verbal assurances.

This comment has been deemed insightful by the community.
Anonymous Coward says:

Re: Re: Re: There's the Tech platform argument

That’s stretching into non-compete agreement territory. I refuse to sign any such agreement along with anything that contains an assignment of invention clause. At my current job I redlined all of that and then signed the edited form. I told them they can either accept that or fire me and I’m still employed there so I guess it worked out.

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Anonymous Coward says:

Re: There's the Tech platform argument

I suppose suppose you could argue that the entity trying to enforce any such NDA is not a private company, but rather the President of the United States, part of the government by any definition and hence trying to enforce an agreement that would limit speech would be constitutional.

The counter argument may be that free speech is not constitutionally guaranteed to be inconsequential speech (i.e. speech without consequence) and so suing for penalties may not be unconstitutional, where suing to impose a gag order would be.

Another argument could be that this is simply enforcing a contract, not the establishment of a law, so the constitution has nothing to say on the matter.

Of course, supreme courts have held that corporations are "people" under the constitution and that money is speech, so anything is possible…

Anonymous Coward says:

Re: There's the Tech platform argument

I agree with almost all your points. Publicizing sealed medical settlements is not a can of worms, it’s a dirty bomb that will go places you don’t want it to. You think Planned Parenthood pays "hush money", wait until you see what your local hospital pays out and why. I guarantee it’s an answer you’re going to hate.

Anonymous Coward says:

This was before she was part of the .gov world but it seems as if they still apply to people in the employ of the Orange One in his current role? He does have a lot of hanger on’s around those parts but I can’t believe he pays for them, himself. He’s much too cheap for that when they can be paid for with .gov funds.

So, how are we letting these things go, when we pay their salaries?

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