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Nondisclosure agreements questioned in harassment cases

Women alleging sexual misconduct by powerful and well-known celebrities, such as Harvey Weinstein, Bill Cosby and Matt Lauer, face many risks. Strictly speaking, they may also face the risk of a civil lawsuit by breaking nondisclosure agreements. However, the risk of a breach of contract lawsuit in these cases have decreased.

Nondisclosure agreements purchase silence as part of the financial settlement of harassment or sexual misconduct allegations, or may be contained in employment contracts. These agreements are often executed before a lawsuit is filed or before a case goes to trial. Confidentiality agreements sometimes require accusers to destroy evidence concerning the allegations, such as emails.

Accusers may face little choice but to agree to silence as their only option to obtain any compensation or justice, especially when the statute of limitations expired and prevents the filing of criminal charges. Some accusers want to avoid the trauma and stress of a public court fight.

Courts may refuse to enforce these clauses if there is an overriding public interest, such as exposing an abuser so that other individuals are not victimized or that an accuser's free speech rights are restricted. Most judges are also generally reluctant to penalize a victim for violating these agreements.

The accused may try to sue the alleged victim for breach of contract and seek the return of the financial settlement. However, this often draws attention to the original charges and is perceived as continued abuse of the victim.

These agreements were reportedly breached in at least two well-known cases. Bill Cosby sued one of his accusers in 2016 after Pennsylvania law enforcement officials filed charges that he drugged and molested her in 2004. He claimed that she breached the agreement by answering the prosecutor's questions before he was charged. The victim claimed that he publicly claimed that he did not assault anyone. He withdrew the lawsuit months later.

Former CEO of Fox News Roger Ailes sued Gretchen Carlson in 2016 when she publicly claimed that she was fired for her refusal of his sexual advances. He claimed that the contract first required confidential arbitration. Ailes died in May, however.

Source: NBC 4 Southern California, "Sexual misconduct accusers face risks in breaking nondisclosure agreements," By Michael Tarm, Dec. 1, 2017

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