Embargo

Embargo Agreement between John Doe and Someone Else

This is an agreement between John Doe and anyone who agrees to it by opening the attachment to this email that contains confidential materials. We will use the name “you” to refer to the opener, and “me” to refer to John Doe.

Here is what we agree. I agree to allow you to read attachments to the email I’m sending you that discusses various topics related to my disputes with Third Party. You agree that if you open the attachments or forward them, you won’t allow the media to get hold of them or the information they contain. You can do whatever you like, though, so long as you email me and I give permission.

When everything becomes public, this agreement terminates—you can repeat anything that’s already gotten out. I’ll try to notify you of that date in advance if I can see it coming. If you notice anything has been published in the media, I’d appreciate knowing, but you don’t have to let me know.

This agreement is a formalized version of the “embargo agreement” common in the news business (see https://en.wikipedia.org/wiki/News_embargo). When the government is going to release crop statistics, it lets reporters know early, but takes great care that they won’t use the information to trade on the futures markets. When a politician gives a speech, he’ll give a copy to reporters early so they can make instant comments. You may remember in the movie The Devil Wears Prada how the heroine is able to get an advance copy of the latest Harry Potter novel—it’s because it was circulating to book reviewers under embargo. (In the movie, it works out okay, because the leak is just to the obnoxious twin girls, not to the general public.) I don’t know how often written agreements are used, but they’d prevent a lot of problems. A leading case without a written agreement is Cohen v. Cowles Media, 457 N.W.2d 199 (Minn 1990): reporters promised confidentiality and then broke their promise. The court agreed that an oral agreement could be a legally enforceable contract, but what the source and the reporters said to each other was too vague. So actually, if I just told you that you could read my attachments but you’d have to promise to not spill it to the media, that would be a legal contract and I could sue you for damages, but the court would have to decide whether our agreement was too vague or not.

Thus, you agree by opening the attachment that if you violate this agreement you owe me $100,000 in “liquidated damages”. Liquidated damages mean we won’t try to estimate actual damages resulting from your violation, which might be much higher--- remember the $200,000 figure below-. Instead, we just agree to the $100,000 figure. I of course do not have to sue and collect, even if you’re in the wrong, and I won’t sue you if a leak happens but I decide it was an innocent mistake.

$100,000 may seem outrageous, but it’s actually small compared to the actual damage. If this story breaks into the news too early, Third Party will lose too much face to back down, so I’ll have to sue. I don’t want to sue if I can get them to back down instead. My legal fees if I sue will be very high. Someone I was talking with recently said he’s paid his lawyers almost $100,000 already. The amount will easily exceed $200,000 if it goes to trial. The attorneys I’m thinking of hiring are much more expensive than his, because I want to “do it right”. For example, one of them charged a recent client $790/hour. So a lot of money is at stake.

I fear you might be offended or intimidated by this agreement. Please don’t be. I am trusting you with valuable confidential documents. In turn, I want you to trust me not to sue you out of greed. If you know me, you know I’m a pretty nice guy and not greedy, even if I’m hard on people who cheat. Remember, too, that this agreement allows me to show my documents to people I don’t know personally (e.g. reporters) but who might give me advice or might want to write articles on my controversy after the date it goes public. I want to be as helpful as I can to reporters without risking premature publicity. This whole thing sounds a bit scary, but it is a serious business, with important people who hate me and want to destroy me. It’s understandable if you decide you don’t want to get involved. You must decide for yourself what the morally right thing to do is.

A last point. By “the media” I mean not just newspapers, TV, and radio, but weblogs, Twitter, Facebook, and other social media and Internet outlets— and anything else that would amount to public exposure. I don’t mean talking about it with friends; I will be happy if this develops rumors that get back to Third Party and show them I mean business. But don’t post on it in your weblog, if you have one.

The agreement ends with this sentence, and it’s just what’s in this document, not anything else.