Nondisclosure Clauses
I have thought of writing a law review article on such nondisclosure contracts. A few articles have been written on them in the context of sexually harassed women settling out of court for extra money in exchange for keeping quiet. The interesting legal question is whether such agreements are enforceable in court. There is a general doctrine in Contract that "contracts that violate public policy are void". For example, you cannot enforce your cocaine purchase contract in court. The King's court will not enforce contracts contrary to the health, safety, and morals of the realm. Thus, should a contract to keep crimes secret be enforceable? How about to keep secret conduct that is unlawful but not criminal--- breaching academic freedom and a tenure contract? As far as I know, this is untested in court.
https://www.jamesgmartin.center/wp-content/uploads/2021/01/Scholastic-Gag-Orders.pdf and https://www.jamesgmartin.center/2021/01/the-ways-in-which-colleges-legally-silence-troublesome-scholars/
Vaccine Production Violations
"U.S. Bet Big on Covid Vaccine Manufacturer Even as Problems Mounted," New York Times (2021)
He added, “Any allegation that our safety, quality and compliance systems are not working or that we do not take these responsibilities seriously is false.”
But four former company officials, speaking on the condition of anonymity because they had signed nondisclosure agreements or feared retaliation, described an environment where top Emergent leadership tolerated and even encouraged the flouting of federal standards for manufacturing and marketing products.
One of the former officials said that as the company scrambled to meet the heavy demands of vaccine production, a senior manufacturing supervisor often responded to reports of quality errors by asking: “Do you want me to make drugs or fix issues? I don’t have time to do both.”
Arbitration As Secrecy
https://www.brownehouselaw.com/arbitration-in-higher-ed/
The arbitration angle is interesting. Arbitration clauses per se are reasonable and are commonplace in business, to get quicker and more accurate results than from courts. Their legality is well established. What is not well established, though, is *secret* arbitration. Arbitration is not public like a court, but it doesn't have to be secret, either. What is is bad here is that the professor cannot, it seems, say publicly what happened in the arbitration proceedings. Whether that is legally binding is not so clear as that the money settlement in arbitration is binding.
Anybody know of caselaw on this, from university cases or business cases?
What we'd want to see is whether some student or professor whose case has gone to arbitration has talked about it publicly and gotten some kind of attempted punishment from the university. If nobody has yet, a test case should be brought, with careful preparation.
[https://poseidon01.ssrn.com/delivery.php?ID=692102005081068102096015100001027077118020020019044006105026121064071098093031068105121035037038023004045071089093010067067070025085014061016066103016025004093068070050022000072001098120105111096023064004003015074017102116031071073015075090067068022&EXT=pdf&INDEX=TRUE%7C Maureen A. Weston 2020 "Buying Secrecy: Non-Disclosure Agreements, Arbitration, and Professional Ethics in the #MeToo Era,"]
"Untangling the Privacy Paradox in Arbitration," Schmitz, Amy J., 54 U. Kan. L. Rev. 1211 (2005-2006).
"Assuming Silence in Arbitration," New Jersey Lawyer, p. 269, April 2011 Amy J. Schmitz
Boudreau (Central Michigan, 2021)
- A FOIA request got the settlement agreement. See Volokh Conspiracy.
Prof. Boudreau, who was represented by a lawyer from the Foundation for Individual Rights in Education, withdrew any claims he might have against CMU, retired from CMU (he was apparently eligible for retirement), and in exchange received 10 months' salary and benefits (from Sept. 1, 2020 when he had been fired, to June 30, 2021, the end of this academic year).
5. Dr. Boudreau shall be paid in a lump sum, less normal withholding taxes the value of pay and CMU's contribution to benefits through June 30, 2021 within thirty (30) days of this settlement. A W-2 will be issued for this payment.
15. Dr. Boudreau agrees that the terms of this Release, including the payment made hereunder, are confidential and shall not be divulged to any third party except his spouse, tax advisor, CPA, wealth manager, and/or his attorneys who shall be advised of this confidentiality provision. Dr. Boudreau shall not be held liable for breach of this confidentiality clause in the event he is compelled via subpoena to under oath in court of law regarding details or terms of his severance and/or settlement agreement provided that he gives prompt notice to the CMU's General Counsel so CMU has the opportunity to object to the subpoena.
16. In the event that Dr. Boudreau violates any aspect of this Agreement, he acknowledges that said breach shall cause damage to CMU. The parties understand that CMU may have to reveal the terms pursuant to FOIA unrelated to any request by the Union or Dr. Boudreau, who agree not to make, encourage, or otherwise participate in such request.
19. Dr. Boudreau shall not, by oral or written expression or any other act of communication to any third party, by name, disparage, criticize, or impugn the reputation or character of CMU's curent or former Board of Trustees members, Board of Trustees, administrators, directors, other employees,eagents and representatives, both individually and in their official capacities (Releas6s). This provision shall not be construed to prohibit Dr. Boudreau from communicating his disagreement with CMU's decision to terminate his employment for the way he spoke various words including the "n-word", his criticism of CMU's decision and generally his beliefs and opinion on the efficacy of his teaching methods. Dr. Boudreau further agrees that this provision concerning non-disparagement is a material condition ofthe consideration contained herein, that this provision is an essential part of this Agreement, and that any violation ofthe terms ofthis paragraph shall be deemed a material breach of the entire Agreement.
21. Dr. Boudreau agrees that this Agreement shall be binding and inure to the benefit of his successors, executors, administrators, personal representatives and assigns, and to the benefit of the predecessors, successors, and assigns of the Releasees, and further agrees and acknowledges that this Agreement contains and comprises the entire agreement and understandings of the parties, and that there are no additional promises or terms of this Agreement, other than those contained within this document and the documents referenced herein.
23. If any provision of this Agreement shall for any reason be held invalid, illegal, unenforceable, or in conflict with any law governing this Agreement, the validity of the remaining portions of this Agreement shall not be affected but shall continue in full legal force and effect to the fullest extent allowed by law.
Observations:
- (1) He can talk about the incident he was fired for.
- (2) He can disparage the University, just not the various individuals who are to blame for any university scandals he may reveal.
- (3) The University and its officials are free to disparage him however much they want.
- (4) No damages are specified for breach of the clause. He is paid his settlement money within 30 days, and there are no liquidated damages. Presumably the damages would be the default of expectation damages, which in this case would be like defamation damages except he would be liable for harm caused even by truthful statements about public figures.
