1/ This is directly in my wheelhouse as a civil rights lawyer. A settlement agreement is nothing but a contract. The measure of contractual breach is the consideration paid by the other side. Read on to learn more.
2/ Sometimes there are liquidated damages tied to breach of confidentiality (like $10K for every breach). But the maximum for the breach should be the total compensation paid to the victim. So that’s a known quantity.
3/ The brave women speaking out face the potential of defamation suits by rich perpetrators. If #TimesUp or others want to protect silence breakers, offering defamation defense is key. Many fear speaking out b/c they can’t afford a defense. Even tho truth is an absolute defense!
4/ I’m going to answer your specific questions, but understanding this context is important. Victims are intimidated by gag clauses. And often they agree to them because they think it’s the only way to avoid being ostracized, blackballed and branded.
5/ Stopping for a sec to note the perverse truth that gag clauses leave victims defenseless against the rumor mill. “She got that job because she slept with him” becomes the myth. She is forced once again to pay the price for his wrongdoing. And bear shame that belongs to him.
6/ Re Q1: The courts would not likely get involved in “enforcing” an NDA but rather adjudicating damages after a disclosure. If there’s a liquidated damages clause, that’s likely the measure. The max should be the amount that the victim got.
7/ If someone (let’s say a sitting president) brought suit to stop disclosure of facts covered by an NDA, that’d be a real shitshow. First because the complaint will have to lay out all the details about the settlement and how disclosure has damages him.
8/ Before we get the constitution (and we’ll get there) injunctions in contract cases are not given willy nilly. They’re only supposed to happen to avoid irreparable harm. What’s he going to say is the harm to him of the public learning about these accusations?
9/ But also because of, oh, you know, the FIRST AMENDMENT. An injunction against non-disclosure of details bearing on the fitness of a sitting president would raise constitutional concerns about prior restraint of political speech.
10/ So, given the small matter of the CONSTITUTION, the chance of an injunction to enforce an NDA are near zilch IMO. Damages after disclosure is a different question. (Disclaimer: no one should take this as advice to breach any contracts. For heaven’s sake, consult a lawyer!)
11/ Re Q2 - Yes, someone could offer to pay legal bills for silence breakers. That *might* open them to some risk of a suit if they’re intentionally interfering with a contract (IIWC is one of those law school exam torts). So again - good idea to talk to a lawyer about this.
12/ As for Q3 - Breaching a contract is NOT a crime. (Not gonna name names here but some people seem to think it’s a perfectly acceptable business practice.) So paying damages isn’t like serving time. Someone else can do it for you. But see next tweet.
End/
Warning: This is a Twitter thread, not legal advice. If you are thinking about speaking out or funding defense costs or paying judgments for silence breakers, get legal advice to understand the risks. Also, I 💜 you.
Warning: This is a Twitter thread, not legal advice. If you are thinking about speaking out or funding defense costs or paying judgments for silence breakers, get legal advice to understand the risks. Also, I 💜 you.
