Weinstein Scandal Raises Questions About Non-Disclosure Agreements

NPR's Robert Siegel talks to Jonathan Handel about whether non-disclosure agreements, like those reportedly signed by Harvey Weinstein and women who accused him of sexual harassment, are legal.

ROBERT SIEGEL, HOST:

In the Harvey Weinstein story, as in other stories we report here, we hear that someone who was wronged isn't talking because they signed an agreement and perhaps accepted some money in that agreement or that a former employee knew about a boss's bad behavior but kept quiet about it because they signed a nondisclosure agreement.

Well, I've been wondering where the line is between a legal contract by which someone is paid not to talk about something and hush money, a criminal cover-up. We're going to ask entertainment and technology lawyer Jonathan Handel, who's also a contributing editor to The Hollywood Reporter. Welcome to the program.

JONATHAN HANDEL: It's a pleasure to be with you, Robert.

SIEGEL: And how common are nondisclosure or confidentiality agreements in the entertainment industry?

HANDEL: Well, they come in two flavors. One is in settlement agreements when there's been a dispute. And they've been common in the entertainment and other industries for pretty much forever in that context. In the context of employment agreements when someone, you know, is asked to sign something when they go work for a company, these days they're as common as a smoggy day in this city. But that wasn't always the case.

SIEGEL: I mean, let me run a very extreme hypothetical past you which - I hope it's extreme. I am shot by a very rich man and disabled. I figure I'll never be able to afford my medical bills. But the rich gunman says, hey, I'll take care of you for life. You just agree not to talk about this. Between us, it's a crime. It's a violent crime. Is that a legal agreement? Can I sign such an agreement?

HANDEL: Well, it probably would be binding in terms of if you go to the press. Now, on the other hand, if you go to the police, a judge is not going to enforce that agreement. Now, it can get a little squishy because there are contexts where a court is sort of so shocked and so disgusted by an agreement that they just rip the whole thing up and void it. And you are giving a very extreme hypothetical obviously.

SIEGEL: Well, let's say I work for someone who routinely uses abusive language and propositions everyone in sight but may not actually break a law. I signed a deal perhaps on the way out of my employment for this person in which I get paid not to say anything about my boss's behavior at work. That's legal. And if a dozen other people complain about my boss, I'm - I can say, nope, I can't talk about that. I'm under contract.

HANDEL: That's right. And you probably signed that not when you were leaving your employment but when you arrive.

SIEGEL: I understand that if I was aware of a business strategy that we were discussing or new products that we were developing, that I'm not allowed to discuss those when I leave that employment. But if something's a felony, does that put it in a totally different category? That is, is the money I'm receiving at that point from my nondisclosure agreement in effect - I'm blackmailing somebody not to testify against them?

HANDEL: In terms of testifying against somebody, in terms of being involved in a legal process, that would probably be insulated from the nondisclosure agreement. But in terms of going to the press, it wouldn't be. I mean, I'll give you a concrete example.

I had a source who had appeared in a movie, and as part of the release agreement, there was a nondisclosure provision. The source came and spoke with me about some alleged misconduct in connection with that documentary. When I sought comment from the target, the source received a threatening letter, and I ended up deciding that to protect the source, I really couldn't run the story. You know, I didn't see my way clear to, you know, to making him the defendant in a lawsuit.

SIEGEL: What about circumstances like the Weinstein case? I mean, do you imagine that there are women who are actually going to be taken to court because they violated a nondisclosure agreement?

HANDEL: Well, now we get to the difference between could and will. They could be. Would Weinstein in fact take them to court? That is a mixed question of law and public relations. And it's hard to know what Weinstein will do. He's lawyered up with some aggressive lawyers. He's threatened to sue The New York Times. But that has not materialized yet. So who knows?

SIEGEL: Jonathan Handel, thanks for talking with us.

HANDEL: Thanks very much, Robert.

SIEGEL: Mr. Handel is an entertainment and technology lawyer, and he's also a contributing editor to The Hollywood Reporter.

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