The contract Stormy Daniels signed just before the 2016 election with Donald Trump lawyer Michael Cohen to keep her mouth shut about a tryst with the candidate is now available for lawyers and bystanders to study.
Now, in the wake of Weinstein, #MeToo and Donald Trump, anecdotal evidence suggests that Daniels is not alone in abandoning the nondisclosure agreement (NDA). Women are more inclined to bust out of agreements that offered them cash in exchange for silence about sexual activity, abuse or harassment.
"I agree that more and more NDAs are being violated post-Weinstein," said prominent feminist and California attorney Gloria Allred, who brought a defamation suit against Trump on behalf of one of the women—Apprentice contestant Summer Zervos— whom Trump called a liar for accusing him of sexual harassment. The change, Allred said, is overdue, adding that financial damages can be so severe that her clients rarely break them.
"Confidentiality clauses have been a fixture in our law for centuries," she told Newsweek by email. "They have been challenged by the courts and, with some exceptions, have been generally upheld. As a result, an unknown number of victims who would come forward to warn others of predators are effectively bound and gagged by our legal system."
Daniels, whose legal name is Stephanie Clifford, didn't set out to violate the agreement. A chain of public revelations starting earlier this year led to her lawsuit, which details the NDA: a January Wall Street Journal report that Trump lawyer Michael Cohen had paid Daniels $130,000 in late October 2016, weeks before the election; In Touch Weekly's publication of a transcript of a 2011 interview with Daniels; and watchdog group Common Cause's complaints to the Federal Election Commission and the Department of Justice, alleging that the hush money was an unreported Trump campaign expenditure.
Daniels's lawsuit, filed Tuesday, includes details of her NDA, effectively breaking the agreement. The contract she signed also says that she may owe damages of $1 million to Trump should she break it. She now argues that the agreement was invalid because Trump never personally signed it.
In busting an NDA, Daniels joins a growing list of women who are daring the courts to enforce liquidated damages in such agreements. Former Fox booker Laurie Luhn broke a $3.15 million severance contract in 2016 to reveal decades of sexual harassment by Roger Ailes, who was Fox News's CEO. Zelda Perkins, a former Harvey Weinstein assistant who'd witnessed the producer assaulting a colleague, spoke up in defiance of a confidentiality clause last fall. Employees of the Weinstein Co. jointly released a letter asking that they be released from confidentiality agreements "so we may speak openly, and get to the origins of what happened here, and how."
Perkins and the Weinstein employees were prompted to act after The New Yorker published allegations by actress Rose McGowan, who had taken a $100,000 payment in 1997 to keep quiet about Weinstein's conduct, which she has since described as rape. McGowan broke her silence after learning in the summer of 2017 that her original settlement did not contain a confidentiality clause.
Former Fox anchor Gretchen Carlson—who did not break an NDA when she sued Ailes for sexual harassment in June 2016—formed an advocacy group to empower women who've experienced harassment. Carlson, who has spoken with thousands of women about sexual harassment in the past year and a half, believes more women are not honoring such agreements.
"Statistically, there aren't any hard numbers to prove this. However, we have seen more women willing to tell their stories in the face of possibly being sued for breaking their NDAs," she said in an email to Newsweek. "Yes, all of these women are taking a legal risk, but from a PR perspective, are these companies or individuals going to come after these women to sue them? Probably not in high-profile cases, but possibly in cases where the people are not well known."
Since the Weinstein story broke, some states, including New York, New Jersey and Massachusetts, have started considering laws to restrict or ban such agreements with respect to sexual harassment. A Massachusetts proposal, for example, would ban such agreements if they involve claims of discrimination, harassment or retaliation in the public and private sectors.
"These agreements are protecting sexual predators while isolating the victims," said state Representative Diana DiZoglio, a Democrat from Methuen who's the lead sponsor of the legislation. "They prevent victims from discussing what happened to them, even among their family members, or warning other potential victims." Federal legislation that would hinder the enforcement of NDAs has also been introduced.
TheTrump Organization has relied on the agreements to silence dissenting or angry ex-employees for decades, with a document so draconian that one lawyer compared it to "what you would expect to sign if you were a nanny to Angelina Jolie and Brad Pitt's children." The practice is not uncommon among other American businesses either. NDAs started to "creep into contacts of all kinds" in the1980s, wrote Michelle Dean in a recent overview in the Columbia Journalism Review. They soon became commonplace.
Yet University of San Diego legal scholar and author Orly Lobel, who recently published an article on NDAs in the Harvard Business Review, agrees with Carlson that more women seem to be breaking their agreements. "I do think there are more challenges now to NDAs, and I think public policy, agencies and the judiciary are more open to not enforcing these contracts when there is a public interest to know," she said.
But Lobel cautioned that "courts certainly respect these clauses" and that if there's a breach, they will give the employer whatever liquidated damages are in the agreement.
Lobel and other attorneys agree that it's too early to tell whether average women, dealing with non-celebrity abusers and harassers, are defying confidentiality clauses at the same rate. "It is more important to transform the workplace than to settle," Lobel said. "Shedding light on this is important." And, she added, all the silence serves to maintain the status quo as far as workplace harassment is concerned.
Legal scholar Catharine MacKinnon, who conceived of sexual harassment as sex discrimination and actively litigates and advises cases, said NDAs can serve a positive purpose for survivors. "Without survivors agreeing to what defendants call 'peace,' i.e. defendants' reputations not being subject to imminent critique in the mainstream media, companies and schools have no incentive to settle," she said in an email. "Without settlements, all cases would go to trial. If all will go to trial, even more will not be reported, because trials are so frequently abusive, and survivors of sexual assault know that."
MacKinnon continued, "In other words, silence is the main thing of value victims have to exchange for ending the dispute short of trial. With care in negotiating, much victim expression can be preserved, and any restrictions can be explicitly voided for violent or serial offenders."
Uncommon Knowledge
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Newsweek is committed to challenging conventional wisdom and finding connections in the search for common ground.
About the writer
Nina Burleigh is Newsweek's National Politics Correspondent. She is an award-winning journalist and the author of six books. Her last ... Read more
