Editor’s Note: Paul Callan is a CNN legal analyst, a former New York homicide prosecutor and currently is counsel at the New York law firm of Edelman & Edelman PC, focusing on wrongful conviction and civil rights cases. Follow him on Twitter @paulcallan. The opinions expressed in this commentary are his own.
Paul Callan: The use of nondisclosure agreements in the Harvey Weinstein story proves why they should be limited in usage
NDAs prevent future victims from learning about the risks they face in offices of employment, writes Callan
In the world of sex abuse litigation, some things change and some things never do. Bill Cosby allegedly used Quaaludes and a famous television show to lure young women to his “casting couch.” Harvey Weinstein allegedly used his shower, while his aphrodisiac and drug of choice was the promise of Hollywood movie fame. Both men, however, were united in their choice of protective legal shields: the court-sanctioned use of secret nondisclosure settlement agreements (NDAs), which prevented future victims from learning about previous accusations made against the media moguls.
Enforcement of criminal, employment and civil rights laws should be sending a strong message that improper and illegal behavior involving acts of sexual abuse will not be tolerated in a civilized society. And while there are plenty of laws currently on the books to that effect, change has been slower than it should be in this area. The message that these laws provide severe penalties and redress for victims has not been effectively communicated, in part, because NDAs shield the public from the details of negotiated settlements.
The use of NDAs and Sealing Orders (orders blocking public view of case records) in sex abuse lawsuits and related employment litigation is now widespread. Such agreements have been designed by lawyers to protect the reputations of their clients and to facilitate quick and quiet settlements.
Superficially, these secrecy agreements seem to serve the interests of sex abuse victims, ensuring them financial compensation without the need for trial. Such agreements also protect individuals falsely accused of sexual abuse from having their reputations tarnished in a public trial. The courts encourage such agreements in order to avoid lengthy and contentious trials and to free courtrooms and judicial resources to focus on other matters.
The secret agreements, though, have a significant downside, and recent entertainment industry cases provide a clear demonstration of this. We now know that allegations of sexual abuse or improprieties in the employment setting involving Bill Cosby, Harvey Weinstein, Roger Ailes, Bill O’Reilly and others were initially asserted by alleged victims and publicly reported but then suddenly vanished from public view. While Weinstein has denied nonconsensual behavior, the others have denied the allegations made against them. The matters disappeared because the parties signed NDAs, which are now permitted throughout the United States.
Some of the matters may have been resolved in favor of the women who initiated lawsuits, and some may have been resolved in a way favorable to the men they accused of misconduct. Unfortunately, the details of case dispositions will never be definitively known because the parties all agreed to secrecy agreements.
In the cases of Cosby and Weinstein, had the current crop of alleged victims known that in prior years other women had accused these men of abuse, perhaps they would have avoided working with them. And other predators, knowing there is a serious price to be paid for predatory conduct, might have altered their own conduct to avoid getting in trouble – saving countless victims from torment.
The flipside of this is that there are also men and women who bring false claims in the employment sector, negotiating small settlements against one employer and then moving on to a new job and starting a lawsuit against their new employer. Since prior settlements are sealed, the new employer has no way of knowing that he or she is dealing with a serial sexual abuse litigant.
Lawyers who specialize in the field of sex abuse and employment litigation will howl at any discussion of limitations on NDAs as an illegal restraint on the ability of private litigants to resolve their own disputes. The fallacy of this argument is that although such cases may involve private entities, they choose to use public courtrooms to resolve their disputes. In choosing a public forum, they have no right to invoke privacy rights that might be invoked in private sector forums. Once a case is resolved in the context of a publicly funded courtroom, except in the most extenuating circumstances, the public should have the right to know what happened.
Such public disclosure is already legally required in many states where either doctors or lawyers are accused of professional misconduct. Public directories can be searched by members of the public to obtain information about how such claims were resolved.
A less ominous version of last week’s New York Times headline “Harvey Weinstein Paid Off Sexual Harassment Accusers for Decades” would have been published decades ago had it not been for secret NDAs. The publication of information regarding the payoffs would have alerted women and, for that matter, other entities doing business with Weinstein’s entertainment empire that perhaps they should look into the details of these settlements.
Get our free weekly newsletter
If the settlements were merely small “nuisance” payments to avoid the cost of litigation, this might indicate that Weinstein settled the cases not because he was guilty but merely to avoid the cost of litigation and the embarrassment of a public trial. On the other hand, if the settlements were large multimillion dollar settlements, this might suggest that there was some merit to the claims.
Of course, lawyers always assert that the fact of a settlement bears no relationship to the merits of the claim – and this is sometimes true. Almost always, however, a large settlement indicates a meritorious claim. That is the reason for the large payment and the reason for the secrecy agreement.
It’s time for a little sunshine in the dark corners of sex abuse litigation for the benefit of all concerned.