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The Legal Implications of Breaking the Confidentiality Agreement



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The woman who accused Herman Cain of sexual harassment now wants to speak up, according to her lawyer, Joel P. Bennett, as first reported in the Washington Post. But in order to do that, she either needs to get permission to speak from the other party or parties involved in the settlement — most likely, the National Restaurant Association (NRA), not Herman Cain, is the only other party and thus in a position to let her break the confidentiality agreement — or she faces serious risks.

If the woman speaks out, without explicit permission to break the confidentiality agreement, she likely risks having to pay a serious financial sum, possibly significantly more than she received in the settlement itself, according to David Zarfes, an associate dean at the University of Chicago Law School and formerly an executive vice president and general counsel of Cap Gemini Ernst & Young. Zarfes also points out that if the woman decides to say, call a press conference, the NRA’s lawyers could probably get a court injunction ordering her to respect the confidentiality agreement. If she disregarded that injunction and went forward, she would face civil penalties.

Bennett told CBS today that “Cain violated that agreement on Fox News on Monday when he said that he had been told that the accuser’s performance in the workplace ‘was not up to par,’” reported The Hill. Is Bennett correct? Zarfes says that the confidentiality agreement probably means that Cain “likely . . . can’t just do anything to impugn the accuser’s reputation and certainly can’t disclose the accuser’s name.”

“You would typically not want to say anything that would reflect negatively on the person. . . . It’s likely that he would be restricted from saying that sort of thing,” Zarfes adds.

But while Cain may have broken the agreement with his statement about her work performance, Zarfes warns that for the woman to come forward unless Cain did something even more obvious, such as publicly announce her name, would be a dicey call. “It would be risky for her on her own to make the determination that he had breached the agreement,” he says. “That’s a legal conclusion that either he breached or didn’t breach. If, however, he opened the doors and broke the agreement by saying it’s Mary Sue Smith that is the complainant, I don’t really see the legal risks to her at that point in going public.”

In reference to the other woman’s claim, Zarfes speculates that while $35,000 is a relatively small sum, he doubts that the NRA would have settled if there had truly been absolutely nothing. “My personal view is that when there’s absolutely no basis to the claim, it would be unusual to just pay someone to go away,” he comments, noting that a company who settled a baseless claim risked having “word get[ting] around in the company that all you have to do when you leave is make some noise that someone looked at you the wrong way or said something that you found offensive” and thus be open to a slew of sexual harassment complaints. 



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