Non Disclosure Agreements & Stormy Daniels: Why Perkins Coie Sucks Even More Than It Did Yesterday

Ah, those pesky Non Disclosure Agreements.

What the writer has failed to mention in the article below is that sometimes, you have "Legal Geniuses" (trademark pending) who execute these NDA's without the knowledge of the individual who is being accused.

Have I reminded everyone today that Perkins Coie Sucks?

#perkinscoiesucks 

What We Don’t Know Can Hurt Us

Nondisclosure agreements can allow defective products to stay on the market, mask sexual predators and restrain whistleblowers

Thanks to Stormy Daniels, Harvey Weinstein and #MeToo, most of us are now familiar with agreements where one party purchases the other’s silence. But such nondisclosure agreements, also known as NDAs, aren’t limited to allegations of sexual misconduct, and often they involve public money. The agreements regularly undermine the accountability of the powerful and protection for the public.

Nondisclosure agreements are more prevalent than you may think. More than one-third of U.S. employees are bound by NDAs of some kind, according to the findings of a 2014 national survey of 11,500 labor-force participants by researchers at the universities of Michigan and Maryland. That means there’s a good chance your own employee contract may forbid you from disclosing certain kinds of information about your employer.

‘Accountability requires transparency, as more policymakers are realizing.’

In the public sphere, there’s a double issue: NDAs can cost American taxpayers money, while preventing us from knowing what kind of silence the dollars are buying and whether it is against the public interest. Nevertheless, since 1997, the Congressional Office of Compliance says it has paid $17 million to settle all sorts of workplace disputes in Congress itself, allowing NDAs to be included in the final settlements. That figure doesn’t include agreements such as those made by Reps. Patrick Meehan of Pennsylvania and John Conyers of Michigan, each of whom resigned in recent months after it came to light that they had paid settlements from their office funds to women who accused them of sexual harassment. Both men denied the harassment.

Some state governments and agencies have increasingly used NDAs as well, even as others have banned or limited their use. In Montana, an auditor found that money spent on settlements including non-disclosures between state employees and the executive branch had quadrupled from 2009 to 2017, from $200,000 to $800,000. A former New Jersey prosecutor, who claimed that he was fired for whistleblowing that exposed alleged corruption in Gov. Chris Christie’s administration, received a $1.5 million settlement from the state in 2016, but the details of the case are concealed by a confidentiality agreement. New Jersey officials reject his accusations, but the state’s lower house has since passed legislation now under consideration in its senate to curtail the use of NDAs in cases involving public officials.

In North Carolina, a 2016 settlement that included an NDA helped shield law-enforcement officials from scrutiny after a Harnett County prison inmate named Brandon Bethea died after being stunned repeatedly with a Taser by a detention officer. Bethea’s family received $350,000 of public funds and agreed not to speak of the case. A video of his death that later leaked to a local newspaper showed that prison officials had misrepresented the incident, though county officials say they still consider the matter resolved.

Even in cases involving private companies, rejecting NDAs can unveil issues that affect the public interest. In exchange for confidentiality, Enterprise Rent-A-Car offered $3 million to the parents of two California sisters who died in a crash, the parents’ attorney told reporters, because of the company’s failure to repair a recalled PT Cruiser. The parents refused the offer, won a $15 million court judgment in 2010, and then went on to help get a federal law passed in 2016—the Houck Act—banning rentals of cars with manufacturers’ recalls in effect until repairs are done.

Of course, secrecy is sometimes justified. Victims of sexual abuse or harassment understandably may value confidentiality. Companies have good reasons to protect trade secrets. Many argue that parties to a voluntary contract ought to be able to reach whatever agreement suits them, so long as there is no public harm.

Accountability requires transparency, as more policymakers are realizing—and there is public harm in allowing defective products to stay on the market, masking sexual predators or restraining whistleblowers. Congress has passed legislation in recent months to restrict the use of taxpayer money and nondisclosure in settling sexual harassment cases, though the bill has yet to be sent to the president for his signature. Lawmakers in California and Pennsylvania, in addition to New Jersey, are exploring changes. Several other states, including Florida, Washington and Louisiana, already have laws prohibiting NDAs if they conceal “public hazards,” such as dangers to general health or safety.

These are promising developments that point to the same conclusion: It is time to rethink the balance between private interests in secrecy and the public’s right to know.

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