New York Considers Barring Agreements Barring Victims From Speaking
from the perhaps-there-oughta-be-a-law dept
In the wake of the news about Harvey Weinstein’s apparently serial abuse of women, and the news that several of his victims were unable to tell anyone about it due to a non-disclosure agreement, the New York legislature is considering a bill to prevent such NDAs from being enforceable in New York state. According to the Buzzfeed article the bill as currently proposed still allows a settlement agreement to demand that the recipient of a settlement not disclose how much they settled for, but it can’t put the recipient of a settlement in jeopardy of needing to compensate their abuser if they choose to talk about what happened to them.
It’s not the first time a state has imposed limits on the things that people can contract for. California, for example, has a law that generally makes non-compete agreements invalid. Even Congress has now passed a law banning contracts that limit consumers’ ability to complain about merchants. Although, as we learn in law school, there are some Constitutional disputes about how unfettered the freedom to contract should be in the United States, there has also always been the notion that some contractual demands are inherently “void as against public policy.” In other words, go ahead and write whatever contractual clause you want, but they aren’t all going to be enforceable against the people you want to force to comply with them.
Like with the federal Consumer Review Fairness Act mentioned above, the proposed New York bill recognizes that there is a harm to the public interest when people cannot speak freely. When bad things happen, people need to know about them if they are to protect themselves. And it definitely isn’t consistent with the public interest if the people doing the bad things can stop people from knowing that they’ve been doing them. These NDAs have essentially had the effect of letting bad actors pay money for the ability to continue the bad acts, and this proposed law is intended to take away that power.
As with any law the devil will be in the details (for instance, this proposed bill appears to apply only to non-disclosure clauses in the employment context, not more broadly), and it isn’t clear whether this one, as written, might cause some unintended consequences. For instance, there might theoretically be the concern that without a gag clause in a settlement agreement it might be harder for victims to reach agreements that would compensate them for their injury. But as long as victims of other people’s bad acts can be silenced as a condition of being compensated for those bad acts, and that silence enables there to be yet more victims, then there are already some unfortunate consequences for a law to try to address.
Filed Under: abuse, contracts, enforcement, harvey weinstein, ndas, new york, settlements
Comments on “New York Considers Barring Agreements Barring Victims From Speaking”
Why not go a step further?
From what I understand about contract law (IANAL), if what one party agrees to do, as part of the contract, is illegal, the whole contract is void.
In the same vein, they should make an NDA void if whatever the NDA would prevent from being disclosed is criminal in nature.
I mean, there would obviously have to be exceptions for the few professions (legal, medical, therapy, counselling, and clergy) for which such disclosures would be a breach of professional ethics, but for any other kind of relationship, I don’t see why someone should be able to contract away the ability to disclose criminal activity.
Re: The presumption falls in the other direction.
You mean make baseless accusations? That’s the flip side of this. These are alleged criminal activities. They haven’t been proven. Such accusations are highly damaging. You’re basically saying people have the right commit slander and that agreements to stop should be illegal.
Re: Re: The presumption falls in the other direction.
“You’re basically saying people have the right commit slander and that agreements to stop should be illegal.”
I did not read that into it, why did you?
You appear to be way off base here.
Re: Re: The presumption falls in the other direction.
Um, no, not at all. There’s a huge world of difference between slander (baseless, untrue accusations), and disclosure (publicly revealing a true event). There are already plenty of laws about slander. Allowing people to use a settlement contract to hide their criminal acts and smother the truth is disgusting and unacceptable.
Re: Re: Re: The presumption falls in the other direction.
Allowing people to take money to hide criminal acts and smother the truth is also disgusting and unacceptable, yes?
Re: Re: The presumption falls in the other direction.
If it really is slander, then why can’t they sue?
Re: Re: Re: The presumption falls in the other direction.
Another reason for an NDA is the old tradition of Danegeld, paying a problem to go away. This is what typically happens in nuisance suits – it’s cheaper to pay them to go away (out of court settlement) than face the allegations in court. It is, IIRC, what Michael Jackson did with the first accusation. The “victim” admitted nothing happened, but his father made up accusations to get leverage a custody fight with the mother – she was endangering the child by letting him hang around with Jackson. Jackson paid everyone to make it go away. Generally it seems, nothing happened. But… considering the circus and accusations in the second trial, seemingly equally baseless, paying the complainant to shut up was probably the quicker way to get the issue off the front page.
So having to sue is exactly what the NDA was designed to avoid. The same might happen for a prominent Weinstein-eque figure in business. (Not suggesting Weinstein was innocent) Was it really sexual harassment in the case of John Doe and Mary Roe? Were his remarks or actions enough to meet the standard of harassment? (Hey, we saw GWB give Merkel an uninvited shoulder rub on TV). Is it a shakedown, a misunderstanding, a personality conflict, or outright predation? Sometimes an organization doesn’t want to pay the money to find out live on the six o’clock news. .
Then there’s the opposite. NDA’s typically come with sensitive jobs. Brangelina and people like them don’t want nannies to quit and write a tell-all or take surreptitious photos etc.
Perhaps what the world needs is simply a setting where NDA’s don’t exist. Once the interaction between two parties is over, the one has no control over what the other says or does. If you don’t want the world to know you settled for $200,000 don’t hand over $200,000. (Or make it timed – $50,000 a year for the nex 4 years provided the terms are not revealed by the party of the second aprt…)
Re: Re: The presumption falls in the other direction.
The accusation is already out there. Repeating it by disclosure of an NDA is simply redundant.
Re: Re:
Great thought. This a very simple, elegant and logical way to address the concern, while limiting the unintended consequences.
Re: Re: Re:
its a shame that it took a “famous” group to do this.
Just imagine all the people in the past trapped in these agreements that lawmakers and the rest of the citizens never cared for until now.
Now that someone “famous” is involved.
Re: Let's take one step more
What about the attorneys involved with contracts designed to cover up criminal activity? Such involvement should result in instant disbarring.
Most contracts have a clause that holds that if one part of the contract is ruled invalid or illegal, it has no effect on the rest of the contract.
But I would agree that if the matter is criminal, no such NDA would have any holding in or outside of a court of law.
NDAs should not be legally more powerful than a judge’s order. It is no different than buying the absolution of sins.
I was unaware that an NDA can be used to stop one from reporting a crime. I doubt one can be held to a contractual item that requires one to commit a crime.
Re: Re:
Unfortunate but true. For example, police are using NDAs with Stingray manufacturers to avoid disclosing that they are committing felonies via wiretap.
Re: Re: Re:
I don’t think it is legally true for them to do this, but you are correct that they are definitely trying to use the NDA as an excuse.
No NDA can be legally require someone to break the law in final analysis. That said, you can bet it will not stop everyone from trying anyways.
The games we humans play…
Re: Re: Re:
That’s a bit different. In that case, the police deliberately fail to disclose their activities and, if caught, claim that the NDA forbid them to do otherwise. I’m not aware of any ruling as to whether the NDA actually legally forbids such disclosure. Certainly, the text of it says not to disclose and the police are quite happy to comply, but unless the police disclose their activities and a court subsequently finds that the police are in breach of the NDA and subject to penalties for disclosure, the invalidity of the text means nothing. This is similar to other contracts, where the text of the contract can specify a blatantly unenforceable term, but as long as all parties pretend it is enforceable and adhere to it, it may as well be legally valid. It’s only when one party elects to breach the term, then challenge any enforcement as being invalid because the term is illegal, that the validity of a term becomes relevant.
Part of the problem with the alleged NDAs regarding Weinstein is that, for whatever reason, the victims did not involve law enforcement. In a case like this, there are broadly two avenues for ending the abuse: involve the police and seek criminal proceedings or involve the public and rely on shunning to punish the offender. As far as I have read (but there has been enough going on I could have missed something), in none of the cases did the victim involve law enforcement in a timely manner. In some cases (e.g. the various incidents where Weinstein allegedly exposed himself, but did not lay hands on the victim), this may have been because the victim believed that the event, while extremely inappropriate and disturbing, may not have risen to the level of criminal abuse; in other incidents that clearly were criminal, the victims must have had some other motivation not to come forward. Regardless of their motivations, if they did not involve law enforcement, then public shaming is the only other venue available. Involving the police is likely exempt from any NDA. Public shaming is not, hence NDAs as the solution chosen by Weinstein’s fixer(s).
Re: Re: Re: Re:
OMG don’t inject sanity and reason into this issue!
It’s just better to use this as an excuse to write for laws so all of the people in support of it can masturbate to it.
Re: Re: Re: Re:
Re: Re: Re:2 Re:
Yes, the good ole I have enough power to ruin your career bit.
To be honest, it is the willingness of the rest to allow him the power to ruin actors careers in this fashion. What is amazing here is that the tone is generally against Harvey when the entire industry is complicit in his games. You can only get so far into the room of a demon before you notice you are right there in bed with them.
I don’t think there is any secret that Hollywood is full of a bunch of sexually depraved humans. I know from a personal experience what this is like as a molested child and the worst I ever had to deal with is an old man constantly trying to stick his hands down my pants. I had to face my fellow members of the “Church” saying that my family was ruining an old mans life by telling on him to the police. There are still going to be people molested in Hollywood that will NEVER come forward with what happened to them in shame. There are still going to be people pissed off at the people that TOLD!
Re: Re: Re:2 Re:
Sure, and it’s pretty clear from statements by some of the accusers that they believed it would be career suicide to have spoken up when it happened, so whether it actually would have been doesn’t matter. The victims believed it, and that belief was enough to pressure them into silence. That explains why they didn’t come forward, but it doesn’t change that coming forward – whether to the police, to the public, or both – is the only way to stop a serial abuser. If the allegations are to be believed, there’s no serious evidence that Weinstein ever would have stopped on his own initiative. We only know now because someone willing to make an enemy of him decided to make the whole mess public. Whatever that person’s motivations, past victims (and future would-have-been victims) owe that person a debt of gratitude for bringing this into the public eye.
None of the victims deserved what happened to them, but some of the early victims deserve some blame for their silence permitting Weinstein to continue victimizing others. If the early victims had spoken out (and again, yes, that might well have been career suicide – doing the right thing isn’t necessarily easy), the negative publicity would have limited Weinstein’s ability to continue snaring unwitting victims.
Re: Re: Re:3 Re:
“That explains why they didn’t come forward, but it doesn’t change that coming forward – whether to the police, to the public, or both – is the only way to stop a serial abuser.”
I would like to double, triple, infitipily ditto this. For every person apathetically allowing evil to continue in this world in silence, they should consider themselves another cog in that machine. So something bad happened to you, well… how about getting out there and trying to prevent it from happening to the next person?
You can’t change what happened to you, but you might be able to change it for someone else it has not yet happened to! These people require your silence to continue their work.
Re: Re: Re:4 Re:
It’s easy to say this or think it. It’s a lot harder to act on it when the consequence is going back to waiting tables or living on the street, or when you have kids to feed, or sick parents to take care of.
In principle, you’re not wrong, but reality is almost never so clear cut.
Re: Re: Re:5 Re:
You are right, it is definitely not easy. But we have to be able to overcome these things. The more we can consistently rat out dirt bags before they bloom the less likely people will considering being dirt bags to begin with.
But like you said, it always takes one of those few people among us willing to stand up. Difficult as it may be, it is necessary.
What is that old saying? The right thing is often the hardest thing? And I am not even trying to dig on the people giving benefit of doubt either. I am only digging on those that definitely saw something wrong and did nothing, especially when they were in a position to do something about it.
It's rare for "laws" to express the will of The People.
“It’s not the first time a state has imposed limits on the things that people can contract for.”
Most of what passes for statute now is simply entrenching and entitling The Rich and their corporations, exempting them from common law. CDA Section 230 for instance, which I believe you or at least Masnick support, carves out exemptions to the laws that publishers must obey. But that’s not the American way of laws prohibiting a few specific actions and applying equally to all, it’s the old European legalistic corruption that leads to both royalty and Nazi-ism. This is not theoretical distinction: everything the Nazis did was perfectly “legal”, but not at all lawful.
I hope Weinstein-gate brings down both the Hollywood power structure AND these “non-disclosure” agreements. Oh, and while wishing: that it also break up the “legal” but unlawful monopoly of lawyers who contrive these corrupt ways around common law.
Re: It's rare for "laws" to express the will of The People.
230 does not exempt publishers from common law. It only states that a website owner is not the publisher of user generated content – that is it identifies the ‘publisher’ as the person making the speech, not the person hosting the platform. If the website operator actually breaks the law themselves, they are not exempt from legal liability.
Re: It's rare for "laws" to express the will of The People.
“CDA Section 230 for instance, which I believe you or at least Masnick support, carves out exemptions to the laws that publishers must obey.”
230 is not an exception, it is an exclusion … of third party liability. Do you really think you should be responsible for the actions of another? If so, why?
“the old European legalistic corruption”
As if that is the only place in which one finds corruption, not sure what the point is other than a dog whistle about europeans.
“brings down both the Hollywood power structure”
What about the rest of the misogynistic dicks out there?
Re: It's rare for "laws" to express the will of The People.
Let me guess, you also believe the court is invalid if the flag in the room has gold fringe, right?
It's Hollywood
A leftist monument of double standards and elitism.
Many a “feminist” were laid low as they worked in the industry. People willingly submitted (sold their soul) to unfair contracts just to get a look at the pie without any guarantee of a lick!
I feel sorry for the children hunted & haunted by these disgusting humans worshiped by the general left. I wonder how those that catered to Hollywood logic feels about one of their own looking exactly like a Womanizing cesspool?
Re: It's Hollywood
Yes, this would never happen among the right. That’s why the Republican Party refused to support Donald Trump despite all the accusations against him. Some – like being entitled to walk in on dressing rooms full of naked teenage girls and of course “grab her by the pussy” – admitted to by Trump himself.
Yes sir. Purely a “general left” thing. Other than that vast majority of the right who had no problem with it.
/s
Re: Re: It's Hollywood
Oh it happens on the right too. Trump is the head pussy grabber in charge. The only difference? The rights is not as hypocritically self-righteous as you lot are about it.
but yes, I did notice your repeat attempt to put me on their side. Is that the only game you got? Make it look like I am the obvious enemy here so you can take the attention off the dirtbaggery of the left?
Well, sadly it does tend to work on you beings of lesser intelligence. I guess that is how we go here in the first place.
You are mistaken to believe that just because I pointed out your sins that I am giving your enemies the same pass. I am here to tell all of you that you are a sorry lot of hypocrites. I make no excuses for the wrong doings of any others like you feel the need to do.
Re: Re: Re: It's Hollywood
You actually believe that?
Bill Clinton having an affair was declared to be of vital national importance by the Republicans. They did everything but demand that he get re-blown on the Senate floor. ("We must know exactly what happened!!!) Everything had to be done in public and under oath, and every word published.
Not so with 9/11, when they investigated what warnings the President received.
The White House wanted to limit any appearance by the president to just one hour spent with two of the commissioners. Bush II did eventually meet with the Commission, but only under stringent conditions: Bush had to have Dick Cheney at his side, testifying at the same time; testimony was given in private and NOT UNDER OATH; no press coverage was allowed; and no recordings or transcripts were made of what they said.
Plus we now know that Newt Gingrich – leading the prosecution of Clinton – was himself having an affair at the time. And it didn’t hurt him – or any of the other later Republican candidates known to have had affairs – when they ran for President.
If a Democrat said any one of many things Trump said on the campaign trail ("blood coming out of her wherever", attacks on the media, etc.) or in the past, Republicans would declare it the apocalypse.
No; you do. I just respond accordingly.
Re: Re: Re:2 It's Hollywood
“No; you do. I just respond accordingly.”
ha ha ha… that’s rich. I tell a dirty democrat that he is a nasty human so of course I am a dirty republican. That is the only lens you are capable of viewing through isn’t it?
R or D glasses.
It is a shame. Yes I fully recognize that Rs and Ds treat each other differently and based on where the majority lies at the time… but that should tell you everything you need to know. You have been hoodwinked, bamboozled, snookered, flimflammed… and all by your own party.
the reason I pick on the D’s here more, is because there are more of your type here. If it was a bunch of R’s then I would be dealing with the exact same butt hurt ninnies crying that I was some sort of democrat as their goto retort for everything I say.
I guess what they say is true… ignorance is bliss.
Re: Re: Re:2 It's Hollywood
And when he was removed as Speaker, House Republicans appointed Bob Livingston to replace him — but he stepped down after it was discovered that he had been having an affair. (At least one; allegedly several.)
And then Dennis Hastert got the job instead. Hastert, we now know, was paying hush money to men who he had sexually abused when they were children.
"Not hypocritically self-righteous"? For God’s sake, of three Republican Party leaders at the time of the Clinton impeachment, two were doing exactly the same thing Clinton had, and one was doing something far, far worse.
Re: Re: Re:3 It's Hollywood
"Having an affair" wasn’t what Clinton was impeached for, so to say that Gingrich and Livingston were "doing the exact same thing" is a bit disingenuous. The Republicans were going after Clinton for lying to a court about it. To the extent they were the same, Gingrich was removed and Livingston resigned, while the Democrats defended Clinton’s actions.
Hastert was eventually prosecuted for lying about his payments to the FBI. That’s more similar to what Clinton did. But the impeachment was well after Hastert’s sexual abuse and well before the hush money and the lying to the FBI; while his actions were reprehensible, none of them happened within ten years of the impeachment – you can’t really say they were "at the time".
On a separate but interesting note (and perhaps more related to the topic at hand), the guy Hastert was paying money to didn’t take Larry Flynt up on his offer of $1,000,000 for dirt on Republicans during the Clinton impeachment. Perhaps because Hastert was paying him more than that. Maybe Flynt should have offered $5 million. But maybe we could have saved ourselves a guy like Hastert being speaker if hush money wasn’t allowed. (Or maybe not… perhaps the parties would have simply ignored such a law. I mean, extortion is illegal anyway.)
Re: Re: Re: It's Hollywood
“Oh it happens on the right too.”
Then why did you type “A leftist monument of double standards and elitism.” in your prior comment? That implies that you do not consider it to anything other than “leftist” … what ever than means.
“The rights is not as hypocritically self-righteous as you lot are about it.”
I think you are serious here … sad but you are not alone in your delusional state.
Oh – ok, obvious troll is obvious.
Re: Re: Re:2 It's Hollywood
that is the problem. Someone is trying to tell you folks that you look like flipping hypocrites and your only solution is to call them a troll.
this is why you lost the election. If it were not for the repeated corruption of the repukes the left would never gain power in government. Of course that could be said vice versa as well. But is that not the very crux of the problem here? You are so steeped in hypocrisy that all you have left is to say… but but but… they do it too!!!
I don’t like either of your groups because all you can be is hypocritical. The only difference is that each of you are hypocritical to different degrees. Democrats tend to be bigger social hypocrites while Republicans are bigger Legal hypocrites. Sure there are cases when these roles reverse but exceptions do a terrible job of disproving the general rule.
Both dies are almost willing to submit to any corruption to one up the other side. Each pilling their garbage ever higher on the other side of the scales in a vain hope to tip things in their favor. All you are doing is surrounding yourselves with garbage and filth.
Re: Re: Re:3 It's Hollywood
The following quote is what I saw as an indicator of your trolliness and reading your above reply just further confirms my suspicions.
“Well, sadly it does tend to work on you beings of lesser intelligence.”
I lost an election? Interesting as I was unaware that I was running. Weird .. what was I running for?
I am a hypocrite ? … probably – isn’t everyone?
Do continue, your babbling is entertaining and a good insight into the insanity that prevails among many of our society today.
Re: Re: Re:4 It's Hollywood
“I lost an election? “
So you voted for Trump?
I don’t hate you if you did, I don’t hate you if you didn’t.
“I am a hypocrite ? … probably – isn’t everyone?”
Sorry, bogus statement. Everyone is a hypocrite about something yes, but some are just stratospheric with hypocrisy.
Your hypocrisy here may not translate to hypocrisy elsewhere, but the more of it you have… the worse off you are.
“Do continue, your babbling is entertaining and a good insight into the insanity that prevails among many of our society today.”
I am very much in the minority. If it is insane for me to have seen all of this coming while you complain that you saw none of it coming but are the sane one… well lets just say… delusion is more your friend than a definition written upon a page.
If an insane person like me saw this coming before it landed on your news radar what does that say about your sanity after you ridicule me over it? What does it say about your person to have insulted someone ahead of you? You only succeed in insulting yourself.
Re: Re: Re:5 It's Hollywood
Wow – way over your head again?
Re: Re: Re:5 It's Hollywood
Since you say "This is why you lost the election" and not "This is why we lost the election," and "not losing the last election" means "voting for Trump," I can therefore conclude that you voted for Trump.
Re: Re: Re: It's Hollywood
Your first paragraph made me do a spit take, it was so funny. Then I realised you were serious and laughed even harder.
Re: Re: Re:2 It's Hollywood
So people ignoring the wrong doing in their groups is funny for you?
Did you laugh even harder at all the folks getting molested and then blackballed in Hollywood by Harvey too for saying something?
Or did you do just as I accused and join up with a group, create efforts to show and outwardly beautiful exterior as you migrated your vile nature to your core where it rots you from the inside?
Hopefully you will be laughing alone.
Re: Re: Re:3 It's Hollywood
In today’s news:
CNN: Trump campaign subpoenaed over sexual assault allegations
These allegations from multiple women – in addition to Trump’s boasting about being entitled to walk in on dressing rooms full of naked teenage girls – which girls have confirmed that he did – plus "grab her by the pussy" etc., didn’t stop Republicans from voting for him.
Throughout this thread you keep repeating your claim that the left and right are identical. Perhaps the left has nothing to be proud of. But at least when the stories about Weinstein went public, his career was over. And it was those who you call the "left" that ended his career and vilified him.
When similar stories about Trump went public, the right declared "Nope; not a problem!", continued to declare him the paragon of conservative leadership, and elected him President.
I’m of the opinion that employment contracts are one of the areas with the least need for this law. What’s needed there is the rule that an NDA cannot limit the making of a criminal or civil complaint nor the testimony a witness may give under oath (whether at trial or in a deposition), but is grounds for having the case or testimony sealed unless a judge rules it should not be.
It’s in other areas like general terms of service that there needs to be more of an absolute bar on unilaterally-imposed NDAs. It’s one thing for a highly-paid software engineer to agree to an NDA as part of their employment agreement, it’s another thing for a minimum-wage cashier and another time-zone completely for someone going to the dentist to have to agree to an NDA just to get an exam.
Re: Re:
I wouldn’t give a presumption of sealing just because two people agreed to make it private. If it should be sealed they can make a motion to seal it, just like in any other case.
I’m pretty sure you already can’t legally make a contract that prohibits criminal charges, or prohibits testifying in court. Declining to press charges because of payments is generally considered blackmail/extortion (unless, of course, the payments actually negate the crime, such as paying for something you stole.) And the court is not a party to the contract and can demand testimony of a witness regardless of what they have otherwise agreed.
If it were up to me, I’d probably prohibit all NDA’s that weren’t strictly limited to trade secrets or privileged communications.