WEBVTT - NDAs Can Potentially Aid Sexual Assaulters at Work (Audio)

0:00:00.080 --> 0:00:03.519
<v Speaker 1>You're listening to Bloomberg Law. I'm Greg's store with June Grasso.

0:00:03.920 --> 0:00:07.680
<v Speaker 1>In Harvey Weinstein agreed to pay actress Rose McGowan a

0:00:07.720 --> 0:00:11.079
<v Speaker 1>hundred thousand dollars. The accord settled her claims over a

0:00:11.160 --> 0:00:14.840
<v Speaker 1>hotel room incident she has since described as rape. It

0:00:14.920 --> 0:00:18.400
<v Speaker 1>also bought McGowan silence, silence that helped Weinstein stay in

0:00:18.440 --> 0:00:21.320
<v Speaker 1>his purchase one of Hollywood's most powerful movie producers for

0:00:21.360 --> 0:00:24.440
<v Speaker 1>the next two decades. With more than forty women now

0:00:24.440 --> 0:00:27.960
<v Speaker 1>accusing Weinstein of sexual harassment or assault, that type of

0:00:28.000 --> 0:00:31.760
<v Speaker 1>nondisclosure agreement is getting renewed scrutiny. Some people are asking

0:00:31.760 --> 0:00:34.040
<v Speaker 1>whether they do more harm than good when it comes

0:00:34.080 --> 0:00:38.680
<v Speaker 1>to sexual improprieties, perhaps even covering up criminal activity. With

0:00:38.840 --> 0:00:41.480
<v Speaker 1>us to talk about the subject is Rebecca Greenfield. She's

0:00:41.479 --> 0:00:44.120
<v Speaker 1>a Bloomberg News reporter and the host of the Bloomberg

0:00:44.400 --> 0:00:49.920
<v Speaker 1>game Plan podcast. Rebecca, thanks for joining us um in

0:00:50.040 --> 0:00:52.839
<v Speaker 1>your UM. In your recent story on the subject, you

0:00:52.840 --> 0:00:56.600
<v Speaker 1>talk about how nondisclosure agreements come in several different flavors,

0:00:56.640 --> 0:01:00.920
<v Speaker 1>but with regard to um sexual harassments, settlements give us

0:01:00.920 --> 0:01:04.840
<v Speaker 1>a sense of what they typically include, So thanks so

0:01:04.920 --> 0:01:08.000
<v Speaker 1>much for having me. Yeah, So what often happens is

0:01:08.280 --> 0:01:15.000
<v Speaker 1>that you will have alleged harassment and you might want

0:01:15.000 --> 0:01:18.560
<v Speaker 1>to sue, but instead you will settle, and a part

0:01:18.640 --> 0:01:20.679
<v Speaker 1>of the deal of the settlement is that you sign

0:01:20.680 --> 0:01:24.840
<v Speaker 1>a non disclosure agreement saying that you won't talk about

0:01:24.880 --> 0:01:27.720
<v Speaker 1>any of the facts that happened. And this is this

0:01:27.920 --> 0:01:30.200
<v Speaker 1>is common. I mean, this is not just harv Weinstein

0:01:30.280 --> 0:01:34.039
<v Speaker 1>that's using these. These are very common in sexual harassment cases.

0:01:34.080 --> 0:01:36.840
<v Speaker 1>It's hard to know how common because we can't talk

0:01:36.880 --> 0:01:40.240
<v Speaker 1>about it, but usually that is what the agreement looks like.

0:01:40.880 --> 0:01:44.960
<v Speaker 1>They're also common in a lot of civil litigation. And

0:01:45.120 --> 0:01:48.000
<v Speaker 1>part of the reason for making many of these settlements

0:01:48.040 --> 0:01:51.040
<v Speaker 1>out of court is keeping the case out of the

0:01:51.040 --> 0:01:54.040
<v Speaker 1>courtroom and out of the public. So the question is

0:01:54.160 --> 0:01:57.280
<v Speaker 1>would there be these kinds of settlements if not for

0:01:57.320 --> 0:02:01.720
<v Speaker 1>these non disclosure agreements. Yeah, I mean, I think some

0:02:01.760 --> 0:02:04.639
<v Speaker 1>people want to settle, they want some sort of money

0:02:04.960 --> 0:02:08.720
<v Speaker 1>for their their problems, and might not want to talk

0:02:08.760 --> 0:02:11.320
<v Speaker 1>about it. I think people who do want to talk

0:02:11.360 --> 0:02:13.240
<v Speaker 1>about it, Yeah, they're not going to have they're not

0:02:13.280 --> 0:02:16.320
<v Speaker 1>going to go into this non disclosure agreement. But yeah,

0:02:16.360 --> 0:02:19.359
<v Speaker 1>without the settlement, you're not going to get the agreements

0:02:19.360 --> 0:02:22.960
<v Speaker 1>one kind of goes with the other. So if somebody

0:02:23.000 --> 0:02:26.320
<v Speaker 1>signs a nondisclosure agreement in this context, what does it

0:02:26.440 --> 0:02:30.960
<v Speaker 1>prevent them from doing? Specifically? For example, would somebody be

0:02:31.000 --> 0:02:33.560
<v Speaker 1>able to talk to prosecutors who are looking into criminal

0:02:33.600 --> 0:02:37.960
<v Speaker 1>allegations or talk to the UH Equal Employment Opportunity Commission

0:02:38.280 --> 0:02:42.480
<v Speaker 1>UH looking into a not perhaps that particular case, but

0:02:42.480 --> 0:02:46.359
<v Speaker 1>but a broader practice involving a person or a company. Yeah,

0:02:46.400 --> 0:02:50.960
<v Speaker 1>with regards to sexual harassment allegations, the NDA can't prevent

0:02:51.040 --> 0:02:55.839
<v Speaker 1>you from talking to law enforcement or from filing with

0:02:56.280 --> 0:02:58.920
<v Speaker 1>the e o C. I think that these agreements still

0:02:58.960 --> 0:03:00.920
<v Speaker 1>have a way of killing people from doing that. And

0:03:00.960 --> 0:03:04.239
<v Speaker 1>in my reporting, a lot of people don't know that

0:03:04.240 --> 0:03:07.440
<v Speaker 1>that is something that you can't do, but it's it's

0:03:07.440 --> 0:03:12.799
<v Speaker 1>really shouldn't prevent you from working with law enforcement. Um.

0:03:12.840 --> 0:03:15.840
<v Speaker 1>There was an NDA that I did see that tried

0:03:16.000 --> 0:03:20.080
<v Speaker 1>to make it so that if you talk to you

0:03:20.080 --> 0:03:22.200
<v Speaker 1>can you could talk to law enforcement or the e

0:03:22.280 --> 0:03:25.000
<v Speaker 1>o C, but you couldn't talk to a third party

0:03:25.080 --> 0:03:28.200
<v Speaker 1>about those things. UM. So you could see how that

0:03:28.240 --> 0:03:30.799
<v Speaker 1>would also have a chilling effect on what you can

0:03:30.880 --> 0:03:35.680
<v Speaker 1>and can't talk about. Rebecca, I don't recall any court

0:03:35.720 --> 0:03:41.840
<v Speaker 1>cases where someone violated confidentiality clause and the other side

0:03:42.280 --> 0:03:45.040
<v Speaker 1>brought them to court. Have have you heard of any?

0:03:45.200 --> 0:03:47.080
<v Speaker 1>So I talked to a lot of lawyers about this.

0:03:47.200 --> 0:03:52.160
<v Speaker 1>It does happen, but I think what it's more the

0:03:52.200 --> 0:03:54.480
<v Speaker 1>threat of the lawsuit that stops people from doing that.

0:03:54.560 --> 0:03:58.400
<v Speaker 1>I mean, if you're a single person going up against

0:03:58.440 --> 0:04:01.240
<v Speaker 1>a company, a company has so any more resources and

0:04:01.280 --> 0:04:04.600
<v Speaker 1>they're gonna say you broke this contract and threaten you

0:04:04.640 --> 0:04:06.680
<v Speaker 1>with the lawsuits. So I think that is probably what

0:04:06.760 --> 0:04:10.120
<v Speaker 1>happens more often it's the threat of the lawsuit. Um.

0:04:10.280 --> 0:04:14.200
<v Speaker 1>But I did have one experts showed me that that

0:04:14.360 --> 0:04:17.680
<v Speaker 1>a a court had found that someone had violated a

0:04:17.839 --> 0:04:21.359
<v Speaker 1>confidentiality agreement. But even in that settlement, it was unclear

0:04:21.520 --> 0:04:24.640
<v Speaker 1>how much money the person out in the end. So

0:04:24.920 --> 0:04:28.120
<v Speaker 1>it's kind of like the end of the lawsuit. You know,

0:04:28.400 --> 0:04:30.960
<v Speaker 1>it's not as um, you might not have to pay

0:04:30.960 --> 0:04:33.000
<v Speaker 1>as many damages as you think you might have to

0:04:33.160 --> 0:04:34.839
<v Speaker 1>a lot of people think that you have to pay

0:04:34.880 --> 0:04:37.520
<v Speaker 1>back your whole settlement. Really, a court, I was told,

0:04:37.520 --> 0:04:40.520
<v Speaker 1>would wouldn't really find that to be a realistic penalty

0:04:40.600 --> 0:04:42.800
<v Speaker 1>for breaking one of these But of course, you're gonna

0:04:42.880 --> 0:04:46.080
<v Speaker 1>end up paying so much more in time, money, reputation

0:04:46.160 --> 0:04:48.719
<v Speaker 1>if you have to go to court for a lawsuit

0:04:48.800 --> 0:04:50.760
<v Speaker 1>over breaking something. So you have to wagh if it's

0:04:50.800 --> 0:04:54.240
<v Speaker 1>really even worth it. Rebecca, what are we seeing in

0:04:54.320 --> 0:04:58.960
<v Speaker 1>terms of efforts to bar NDAs at least NDAs that

0:04:59.120 --> 0:05:04.040
<v Speaker 1>prevent victim of sexual harassment and assault from from speaking out. Yeah. So,

0:05:04.200 --> 0:05:08.640
<v Speaker 1>right after these Weinstein revelations came forward, um to New

0:05:08.720 --> 0:05:13.919
<v Speaker 1>York state lawmakers introduced legislation to avoid any contract that

0:05:13.960 --> 0:05:18.039
<v Speaker 1>includes a provision to silence workers about harassment or discrimination.

0:05:18.240 --> 0:05:21.440
<v Speaker 1>It's still really early on in the process. He said

0:05:21.480 --> 0:05:23.919
<v Speaker 1>that the legislator doesn't even meet until January. But I

0:05:23.960 --> 0:05:27.800
<v Speaker 1>think that they're hoping to ride this wave of publicity

0:05:27.839 --> 0:05:33.000
<v Speaker 1>and anger over what nondisclosure agreements can do. Weinstein had

0:05:33.240 --> 0:05:36.160
<v Speaker 1>two kind of kinds of n d as he had,

0:05:36.200 --> 0:05:38.320
<v Speaker 1>accorded to The New York Times. He had the ones

0:05:38.360 --> 0:05:41.000
<v Speaker 1>that we're talking about in settlements, and then he also

0:05:41.080 --> 0:05:46.039
<v Speaker 1>had one that his employees, uh were sawn were required

0:05:46.080 --> 0:05:49.120
<v Speaker 1>to sign it. Tell us about that the last the

0:05:49.160 --> 0:05:52.440
<v Speaker 1>employee one. So yeah, nd as, as, as mentioned come

0:05:52.480 --> 0:05:55.000
<v Speaker 1>in so many different flavors and even we've seen with

0:05:55.120 --> 0:05:58.240
<v Speaker 1>the Trump administration, he has everybody signed n d as,

0:05:58.279 --> 0:06:01.720
<v Speaker 1>So it's not an uncommon practice. I'm sure anybody who's

0:06:01.800 --> 0:06:03.960
<v Speaker 1>worked at a company knows you usually sign an n

0:06:04.040 --> 0:06:07.400
<v Speaker 1>d A. Often it's supposed to protect trade secrets, which

0:06:07.440 --> 0:06:10.480
<v Speaker 1>the courts are pretty strong on. They don't they will

0:06:10.960 --> 0:06:13.600
<v Speaker 1>you know, you shouldn't sell your company's trade secrets. Um,

0:06:13.640 --> 0:06:16.080
<v Speaker 1>But I think again they are used in this way

0:06:16.120 --> 0:06:20.240
<v Speaker 1>that also scares people into thinking they can't talk about anything,

0:06:20.360 --> 0:06:23.080
<v Speaker 1>and that is not going to be found to be enforceable,

0:06:23.080 --> 0:06:25.760
<v Speaker 1>I'm told, but it doesn't really matter because it has

0:06:25.800 --> 0:06:29.680
<v Speaker 1>this power and effect. Just you signing a document, you

0:06:30.080 --> 0:06:33.120
<v Speaker 1>think you're you can't break. You sign something, you can't

0:06:33.120 --> 0:06:35.440
<v Speaker 1>break it. So so I think that's that's the kind

0:06:35.440 --> 0:06:38.479
<v Speaker 1>of employee n d A that we see. But I

0:06:38.520 --> 0:06:40.280
<v Speaker 1>just want to circle back to something that that June

0:06:40.279 --> 0:06:44.240
<v Speaker 1>asked about earlier. But, Um, isn't there wouldn't isn't there

0:06:44.240 --> 0:06:49.040
<v Speaker 1>concerned that if nondisclosure agreements are barred that it will

0:06:49.080 --> 0:06:51.440
<v Speaker 1>make it harder for a victim of sexual harassment or

0:06:51.480 --> 0:06:54.360
<v Speaker 1>sexual assault to get a settlement. I mean, she feels

0:06:54.360 --> 0:06:58.760
<v Speaker 1>like she's a victim. She uh, you know, wants compensation

0:06:58.880 --> 0:07:01.320
<v Speaker 1>for it, and she has to work read that, Um

0:07:02.160 --> 0:07:04.520
<v Speaker 1>it will become public. Will that not make her less

0:07:04.560 --> 0:07:07.160
<v Speaker 1>likely to settle that case? You know, I'm not sure

0:07:07.240 --> 0:07:09.680
<v Speaker 1>the answer to that because we just don't know yet.

0:07:09.760 --> 0:07:13.560
<v Speaker 1>But I understand the argument, Um, why would an employer

0:07:13.640 --> 0:07:16.360
<v Speaker 1>give you money if they're not getting anything in return?

0:07:16.520 --> 0:07:19.120
<v Speaker 1>So so yeah, that's a question that definitely people who

0:07:19.240 --> 0:07:23.000
<v Speaker 1>are advocating for for fewer n d as I think

0:07:23.000 --> 0:07:26.120
<v Speaker 1>you need to grapple with just in about thirty seconds.

0:07:26.320 --> 0:07:29.920
<v Speaker 1>Is this case bringing up things that people and when

0:07:29.920 --> 0:07:32.640
<v Speaker 1>you're talking to people that people didn't realize before about

0:07:32.680 --> 0:07:35.280
<v Speaker 1>these indias, they may think twice before they sign them. Now.

0:07:36.440 --> 0:07:41.160
<v Speaker 1>I think that the lawyers I talked to have been

0:07:41.560 --> 0:07:44.200
<v Speaker 1>dealing with this for a really long time. I think

0:07:44.240 --> 0:07:48.400
<v Speaker 1>people reading the story now realize that not everything you

0:07:48.480 --> 0:07:51.240
<v Speaker 1>sign is necessarily as enforceable as you think it is.

0:07:51.280 --> 0:07:55.480
<v Speaker 1>But I mean, I don't see it changing really anytime soon.

0:07:55.600 --> 0:07:57.440
<v Speaker 1>But but I mean these out that there are a

0:07:57.480 --> 0:08:00.040
<v Speaker 1>lot of allegations and a lot of conversations, So so

0:08:00.160 --> 0:08:03.200
<v Speaker 1>maybe the NDA will get another look. I want to

0:08:03.200 --> 0:08:06.520
<v Speaker 1>thank Rebecca Greenfield, Bloomberg News reporter and host of the

0:08:06.560 --> 0:08:10.560
<v Speaker 1>Bloomberg game Plan podcast for talking to us about nondisclosure

0:08:10.560 --> 0:08:14.120
<v Speaker 1>agreements in the context of sexual harassment settlements and in particular,

0:08:14.120 --> 0:08:17.520
<v Speaker 1>Harvey Weinstein. That's it for this edition of Bloomberg Law.

0:08:17.640 --> 0:08:20.800
<v Speaker 1>We'll be back tomorrow thanks to our technical director, Director

0:08:20.880 --> 0:08:24.000
<v Speaker 1>Chris try Comey and our producer David Sutterman. Coming up

0:08:24.040 --> 0:08:27.520
<v Speaker 1>on Bloomberg Radio Bloomberg Markets with Carol Masser and Corey Johnson.

0:08:27.800 --> 0:08:30.480
<v Speaker 1>Stay tuned for that. This is Bloomberg