There is an interesting legal question at the heart of the still unfolding scandal over whether Republican Presidential contender Herman Cain engaged in sexual harassment. Women accusing Cain were reportedly given a settlement with a gag provision — a common element to such settlements.
Herman Cain has spoken about the allegations, including quoting from his account and suggesting that he merely mentioned that a woman was the same height as his wife. He then suggested that they were hiding behind anonymity — even though their agreement gagged them.
A typical such provisions states: “The terms and conditions of this Agreement are absolutely confidential between the parties and shall not be disclosed to anyone else, except as shall be necessary to effectuate its terms. Any disclosure in violation of this section shall be deemed a material breach of this Agreement.”
Now, their attorney Joel Bennett has said that the Cain interviews with Fox New may have violated the same provision — and thus invalidated the gag on the women. The whole idea of these provisions to prevent either party from “taking a victory lap” or denouncing the other party. They are only enforceable to the extent that your client honors the gag. When confronted with a public allegation, you have to counsel your client on the costs of going public — the chance that the other party will then be free to add details and respond in kind. Such agreements often have not just a confidentiality agreement but a non-disparagement provision.
He certainly appears to have tripped the wire with statements like:
–“I’ve never sexually harassed anyone and I was falsely accused while I was at the National Restaurant Association.”
–“She was in my office one day, and I made a gesture saying – and I was standing close to her – and I made a gesture saying you are the same height as my wife. And I brought my hand up to my chin saying: “My wife comes up to my chin.”
–describing the women as bringing “false accusations.”
Of course, this comes down to the language of the provision. In cases like Hopgood v. Merrill Lynch, 839 F. Supp. 98 (P.R. 1993), the court rejected such a claim because the provision only refers to the “terms” of the settlement and not discussing other aspects.
When a case is settled in litigation, these confidentiality agreement are often incorporated in courts orders, allowing for the court to hold parties or lawyers in contempt for any breach. Baella-Silva v. Hulsey, 454 F.3d 5 (1st Cir. 2006). Thus the typical remedy is found in a breach of contract action as opposed to self-help through counter statements. In agreement like the one in Baella, the provision contains the remedy. In that case, the agreement stated “[c]onfidentiality is the substantial consideration for th[e] compromise” and provides that “[a]ny violation of confidentiality . . . will result in liquidated damages of Fifty Thousand Dollars ($ 50,000.00) to be assessed by this Honorable Court after notice and hearing.”
Absent such a provision or incorporating court order, an aggrieved party will often feel free to public defend themselves in the knowledge that the other party can no longer prevail in a breach claim given their own violations. Even then however it is often important to keep the defense within the scope of the original violation. If you opportunistically go beyond the original violation, you could still find yourself subject to an action for breach.
This issue comes up often with attorneys who are criticized by clients and are able to defend themselves outside the normal limitations of confidentiality for attorney-client relations.
Likewise, employment agreements often include non-disparagement clauses like the one below:
Executive agrees that, during the term of employment and for one year thereafter, executive shall not, in any communications with the press or other media or any customer, client or supplier of company, or any of company affiliates, criticize, ridicule or make any statement which disparages or is derogatory of company or its affiliates or any of their respective directors or senior officers. No directory senior officer of company will, during the same time period, criticize, ridicule or make any statement which disparages or is derogatory of executive.
Here Cain has clearly attacked the veracity of the women and made very concrete (and what the attorney says are misleading) descriptions of the allegations. Of course, there remains the question of who leaked the settlement. That can be a fact that would be the basis for discovery if either party were to sue under the contract.
For their part, the women (or Cain) could also threaten a defamation action. Cain’s statements are not made in filing or in court and are thus not privileged. Conversely, the statements of the lawyer or his clients have been made publicly. It is possible that any party could claim that this ultimately comes down to a difference in opinion as to what constitutes sexual harassment. However, Cain is saying that the statements are are false and made behind the veil of anonymity — suggesting some other than a difference in perspective.
There is also the question of whether Cain should, as a candidate for the highest office, formally waive any confidentiality and allow the women to speak without threat of legal action. After all, he has basically called them either liars or opportunists or both. He has the ability to ungag the women and they can in turn agree that he is not bound by confidentiality in responding.
Source: The Hill
Herman Cain Tells Bill O’Reilly He Is Comfortable With A ‘Shooting War’ Against Iran
Israel test-fired a missile from a military base on Wednesday, two days after Prime Minister Benjamin Netanyahu warned of the “direct and heavy threat” posed by Iran’s nuclear program.
http://www.reuters.com/article/2011/11/02/us-israel-missile-idUSTRE7A11BR20111102
Israel Considers Pre-Emptive Attack On Iran
http://news.sky.com/home/world-news/article/16101552
Sing, Cain, sing.
Wow, eniobob. The case against letting this man anywhere near the Office of President continues to grow. If he’s so comfortable with the idea of a shooting war with Iran then he should be willing to lead from the front.
raff:
Another blow to the house:
Herman Cain Tells Bill O’Reilly He Is Comfortable With A ‘Shooting War’ Against Iran
VIDEO
by Frances Martel | 9:11 pm, November 1st, 2011
http://www.mediaite.com/tv/herman-cain-tells-bill-oreilly-he-is-comfortable-with-a-shooting-war-against-iran/
WHAT?????????
“Could someone please explain to me how these GAG clauses provide a benefit to society?”
It’s part of a bigger picture — how do civil lawsuits provide a benefit to society? At base, it provides an alternative to the hue and cry, providing an alternative to folks grabbing some of that police power which they transferred to the state — the Hatfield and McCoy thing (y’all know that started over a pig?).
Litigation is about substantial justice — just enough to keep the peace. As a law prof. once rebuked a student, “If you want fair, go cry to your Momma.”
And if litigants can settle on their own terms, that’s even better. For every one of these agreements which settled a lawsuit, there are hundreds if not thousands of the same without suit ever being filed.
This is kind of like goat cheese on Pizza….
The political house of Cain cards is beginning to fall. It couldn’t happen to a nicer guy.
Digital Dave:
“Could someone please explain to me how these GAG clauses provide a benefit to society?”
*************************
They don’t. They merely foster settlement because the defendant can hide his/her/its misdeeds under the confidentiality agreement. However, they sometimes serve the interests of the Plaintiff by avoiding publicity and the inevitable pleas for financial help from family and charities that a large settlement necessaritly engenders. They are not going away anytime soon.
Could someone please explain to me how these GAG clauses provide a benefit to society?
What justifies our obligation to provide courts and law enforcement to uphold these contracts? They frequently deprive our society of dearly needed information about people who have done things which resulted in serious harm to others. For instance, the doctor that routinely commits malpractice uses gag clauses to deprive all of his other patients from discovering (until it’s too late) that their doctor is incompetent. The free-market only works when everyone has a wealth of information to base their decisions upon.
Shouldn’t the courts recognize when a gag order is counter to the interest of society before enforcing it?
Who leaked? the story emerged from Politico, whose print advertiser base is lobbyists. they wouldn’t ordinarily draw attention to that community. their commentary tends to be center-Right/GOP establishment and their biggest fan in Bush years was none other than Karl Rove. Given Rove’s long history of dirty tricks, he most likely was the source.
http://www.huffingtonpost.com/2011/11/01/herman-cain-accuser-severance_n_1070698.html?icid=maing-grid7%7Cmain5%7Cdl6%7Csec1_lnk2%7C109342
“The severance payment development comes on the heels of a Washington Post report from earlier Tuesday explaining that a second Cain accuser wants to speak out about an alleged incident involving Cain. The woman is reportedly barred from discussing the encounter due to a nondisclosure agreement that she signed with the National Restaurant Association.”
Bring it on.
I’d like a pepperoni with extra political doom.
How funny would it be to watch the women involved sue Mr. Cain?
According to our pizza guru, it was a pittance of a settlement (“couple of months salary”) so what’s the harm in violating it from the purported victim’s standpoint. Pay the money back; contact a publisher; hit the Fox-msnbc-CNN circuit and let the fur fly. The First Amendment is a wonderful thing, and who needs all that secrecy in the first place. I’m willling to bet ol’ Herman Cain would renegotiate that settlement if he thought it would harm his own future book deal and that rags-to-riches story he’s peddling.* After all, that’s why he’s running in the first place, isn’t it?
*If his story is true, its his parents who deserve the nomination.
I’m guessing that he made mention of a physical characteristic of the woman/women that is similar to his wife, that has little do to with altitude.
One descriptive word could be “appurtenances.”
Either way, he’s toast.
Iowa yawns at Herman Cain allegations
MARSHALLTOWN, Iowa — While Herman Cain struggled for a second day in Washington to push back against sexual harassment allegations, the high political drama almost went unmentioned Tuesday in one of the most important courts of public opinion — Iowa.
On the campaign trail, on local conservative talk radio and in conversations among activists, Republicans here have so far greeted the story with a shrug.
The reactions from Cain’s GOP rivals have been muted: His fellow 2012 candidates continue to tread lightly around the report that the likable front-runner reached settlements with two female employees while he was CEO of the National Restaurant Association in the 1990s.
Read more: http://www.politico.com/news/stories/1111/67410.html#ixzz1cYctyCiu
Wouldn’t the state law specified in the contract for the venue of any future litigation for breach, subsequent to the contract being finalized, have to be considered?
State law can vary on these types of contract terms.
” Of course, there remains the question of who leaked the settlement.”
Exactly Eniobob. The Cain campaign may be behind all of it to get it out of the way. Better to try and clear the air and your dirty laundry now then say in the middle of a one on one debate with your opponent. He knew this was in the closest.
This is all good. It’s time to get it out of the way before he gets any deeper in the cycle. Polls suggest at the moment and fundraising that so far it’s not a problem. Remember it’s best to get the stuff out of the closest as soon as you can. He may have waited to long.
This brings all of the attention to Cain and if he handles it correctly and gets it all out of the way now he could come out smelling like a rose. Remember our dear president said ne smoked weed and snorted coke and he still got elected. Clinton said he didn’t inhale and was actually having sex with women, well, that depends on what your definition of is, is.
” Of course, there remains the question of who leaked the settlement.”
That’s the $64.000 question,and the right is trying to say it was the Democrats who IMHO don’t have a dog in this fight at this time,and the “LIBERAL MEDIA”.
I think before tonights evening news,Mr. Cain will be in a very uncomfortable place,that he won’t be able to laugh off.