News Release

Despite #MeToo, Hiding Malfeasance Still Legal

The New York Times reports in “Despite #MeToo Glare, Efforts to Ban Secret Settlements Stop Short” that: “Harvey Weinstein used them. So did R. Kelly, Bill O’Reilly and many less famous men.

“When these men were accused of sexual abuse or harassment, they would use a legal tool that was practically magical in its power to make their problems disappear: a nondisclosure agreement. That, along with a substantial payment, would be enough to ensure that no one outside a handful of people would ever know what they had been accused of.”Such agreements have been a requirement for years in virtually every out-of-court settlement for sexual misconduct. But after the #MeToo movement took off in late 2017, there were calls around the country to restrict or ban such agreements, and thunderous outrage over their secrecy.

“But almost two years on, as the legislative sessions in many states draw to a close, this much is clear: The N.D.A. has not gone away.”

ALAN GARFIELD, aegarfield at widener.edu
Garfield is a professor at Widener University Delaware Law School and the author of “Promises of Silence: Contract Law and Freedom of Speech” in the Cornell Law Review.

His articles and interviews about nondisclosure agreements include “End the confidentiality agreements that help perpetuate abuse” for the Philadelphia Inquirer in which Garfield writes that “neither companies nor individuals have a legitimate interest in keeping their malfeasance secret, whether it’s about dangerously defective products, predatory sexual behavior, or anything else. Hiding malfeasance only paves the way for more wrongdoing to more unsuspecting victims. Just ask Weinstein’s victims.”