If a person decided to break the NDA they signed where they swore not to tell anyone about those people you killed and ate, your only (legal) recourse is to sue them, correct? Wouldn’t the act of suing them require you to submit the NDA itself to the courts, bypassing the amendment(s) about being forced to incriminate yourself, and opening the courts to saying, “Thanks for the confession!”
If so, then I wouldn’t think that any NDA that included anything amounted to a confession would be legally enforceable.
NDA are at least in part to keep victims from going to the media, not law enforcement. Aaron Spellings would’ve paid a lot of money for the screenplay “Bill Cosby Raped Me,” so Bill Cosby pays more for the teleplay never to be written in the first place. And he gets it in writing that he’s not going to get double-crossed, and after she takes his money and promises not to write the teleplay, she writes it anyway. The NDA prevents “double dipping.” Cosby could always sue for libel, but truth is a defense against libel, and that is going to be her defense. Even if she loses her civil case, the story is still going to come out.
NDAs aren’t always about crime. There were cases in the past (I can’t think of one off the top of my head, but I’ve read of a few) where male celebrities fathered children out of wedlock, and acknowledged them to the point of financially supporting, them, but still required the mothers to sign NDAs so there would never be a tell-all, “How I had So-&-so’s Love Child” book. Apparently, and this is just a rumor, but when a gay celebrity got divorced after his wife caught him with a man, part of his alimony settlement was an NDA, so she could not out him. I can totally believe that, considering what would have happened to a gay star before about 2000, and especially before about 1985.
That NDAs conceal crimes is almost a side effect. What you have to understand is that in the minds of a lot of men who commit sexual assault, they aren’t doing anything wrong. It’s not until they hear what to them is the woman’s “spin” on things, that they realize they story could make them look bad, depending on whose side gets out first, so maybe it’s better if no one’s side gets out. They’re not really worried about going to prison. They’re worried about their careers coming crashing down. If they honestly had a thought in their heads that they could go to prison, it might dampen their enthusiasm. They aren’t even in that room.
I mean, maybe some of them are now, after the fact, but not at the time of the crime.
An NDA is not a signed confession, NDAs can be broad enough that the person does not have to agree that what the other person said is true only that the agreed not to talk about it in public. The obvious defense is that they just did not want the bad publicity of false charges and did not want to go through a libel trial.
The confidentiality agreements at issue typically do not inculpate the malefactor.
In other words, you generally won’t find:
Because I, Richard Roe, raped Jane Doe, I am agreeing to pay her $500,000 conditioned upon her keeping it quiet.
Instead, you’ll find words more like:
Jane Doe has alleged certain acts by Richard Roe. While completely denying each and every accusation Doe has made, and affirming his complete innocence and purity in all matters before man and God alike, Roe recognizes that even a false accusation can cause damage to his reputation, and the outcome of a trial would only come at the end of a long, expensive, public course of litigation. Therefore, in full satisfaction of any claims Doe has made, and without any admission of any wrongdoing, Roe agrees to pay $500,000 to Doe, conditioned upon her keeping this settlement and all accusations made by Doe against Roe confidential. Doe agrees she can’t sue Roe for any act prior to today’s settlement, and also agrees that the $500,000 fully and fairly represents the value of disclosure. If Doe blabs, she agrees that the damages done to Roe is $500,000 and agrees to pay Roe that sum.
An odd thread title, so far as I am aware secret trials are generally illegal, and under most circumstances it is not legal for a governmental entity to conceal a criminal conviction.
I know that some juvenile offenders can, under some circumstances and by the specific order of a judge, clear their record of convicted offenses. That’s about the only scenario I’m aware of in which a criminal conviction is concealed from the public in a meaningful way. Is it this practice you would forbid?
I guess there might also be edge cases of espionage convictions and complicated witness protection situations where a minor crime is stipulated in exchange for testimony but identities must be kept secret. I’m not sure how widespread that sort of thing is.
In which case it wouldn’t be particularly violative of any amendments to subpoena them, since they don’t have any self-incriminating statements in them anyway.
It still eludes me how any document can both have legal power and also have secret contents. But in any case, I’d think the response to “It would be interesting if courts started regarding written NDAs as a signed confession.” would be “It already is one - but all they’re generally confessing to is that the one party wants the other one to shut up.”
IMO, at this point with all the outrage surrounding Weinstein, it’s very likely that a woman suing him for the same acts that were covered by the prior agreement and NDA would probably be able to get a much bigger settlement than whatever she got back then. So the question is if she has the right to walk away from the settlement, or is bound by her end of the deal even if she returns the money.
Because if the former, then I would think any prior victim could just ignore the NDA. Blab to all who will listen, and if Weinstein objects, just say “OK, deal’s off, here’s your money back, see you in court”. I doubt if Weinstein would take them up. But if the deal is binding and not open to reneging on either sides, then not only might they have to give the money back but I suppose they couldn’t sue again (having agreed to give up that right) and Weinstein could possibly countersue for damages based on the NDA.
I caught a snippet on public radio about how many employers are including a binding arbitration clause in their employment contracts. So there may not be a choice to accept an NDA other than by not accepting the job in the first place.
While this is not my area of law, I strongly doubt your conclusion. A confidentiality agreement drafted in response to a specific accusation is not similar to an agreement that parties submit contract disputes to arbitration. The first is a tort claim: an accusation that Richard did something bad to Jane that amounts to a civil wrong, a breach of some civil duty he owes her, like not conditioning employment on sexual conduct. The second is a contract claim, an accusation that Richard breached some contractual duty to Jane arising from the employment.
I would be surprised to learn of any sort of binding confidentiality agreement that was imposed before the tortious conduct even occurred, and suspect that any such attempt to impose conditions like that would be void as a matter of public policy.
Yes, generally. And I only add ‘generally’ out of an abundance of caution. I can’t think of any way that complying with a subpoena would be held to breach a confidentiality agreement contained in a civil settlement.
It’s basically standard practice to have to sign a confidentiality agreement in my line of work: I’m a computer programmer, and basically every single lick of work we do is a trade secret in one sense or another. And that’s putting aside things like customer and contact lists from marketing that they’re loathe to let out. Secrecy for such things is taken seriously - I have a friend who was recently required to sign an NDA before they would even give him a job interview, lest things he learned simply by talking to them about the job and which clients they have get out into the world.
I’d be astonished if none of these NDAs have legal power. I mean, I suppose they could just be a scare tactic, but seriously if I was caught leaking source code or something I would absolutely expect to be both fired and sued.
I think the OP is missing the boat on where the NDAs are a problem.
It is worth exploring whether a person/company being allowed to come to a secret and private settlement is a good or bad thing.
That said I think the area where NDAs are even more problematic is what begbert2 is talking about. Certainly to protect company trade secrets they make a lot of sense and there is not much to fuss about there (although what constitutes a company’s proprietary “secrets” can be a gray area). However, they are not limited to that. It has been reported that Weinstein has employees sign NDAs that obliges them to not harm his reputation.
So here you have an NDA stopping employees from reporting malfeasance they believe their employer is up to. Some here may say that is not enforceable but would you pit your secretary salary to hire an inexpensive attorney against Weinstein’s millions and platoon of lawyers? Probably not.
Ah, but there’s a difference between those types of NDAs and the settlement confidentiality agreements we’re talking about here.
A non-disclosure agreement that protects trade secrets is certainly enforceable. That’s a contract between you and the company, as opposed to a civil settlement after you accused the company of some tortious act.
As a general matter, even agreements to arbitrate employment disputes are not enforceable if they are a condition of employment.
Confidentiality clauses in civil settlements invariably permit release of information pursuant to subpoena or court order (and are void to the extent that they don’t).
The ex post facto clause prevents Congress from making conduct criminal or increasing the penalty for a crime after the fact (there’s another ex post facto clause that applies to the states). Modifying the Federal Rules of Evidence to make an NDA admissible in a criminal case is solely a procedural matter, not a substantive change in the law, and is not prohibited by the EPFC. But in any event, no confidentiality agreement is going to say, “you agree not to tell anyone I raped you.”