Buying Silence: Should It Be Prohibited?

O’Reilly paid $32 million to settle a harassment claim? That’s an astounding amount of money. The New York Times based its assertion on sources, because sources are the best sources.

Details of the settlement and how the company handled the O’Reilly situation emerged from interviews with two people briefed on the agreement and several others familiar with the dispute; all of them spoke on the condition of anonymity to discuss sensitive private negotiations.

O’Reilly’s spokesman, Mark Fabiani, “denounced” the Times’ article.

“Once again, The New York Times has maliciously smeared Bill O’Reilly, this time even failing to print a sworn affidavit from his former lawyer, Lis Wiehl, repudiating all allegations against Bill O’Reilly,” wrote Fabiani. “The Times ignored that evidence, sworn under oath, and chose to rely on unsubstantiated allegations, anonymous sources and incomplete leaked or stolen documents.”

This doesn’t actually deny the amount, but then, it’s confidential. And Bennett Gershman says that’s got to stop.

Interestingly, while much of the public outcry has focused, correctly, on the people who knew about the predatory sexual behavior but didn’t speak out, there is another enabler of the sexual harassment that hasn’t been mentioned, but should be: the legal system.  Indeed, one of the most disturbing features of our legal system is the way it has been used by sexual predators to shield themselves from legal liability. They pay off their accusers and then make them sign confidentiality agreements to keep the accusations secret.

Calling the legal system an “enabler” is curious, as if the system did something on its own. Gershman’s beef is that the law allows private parties to enter into an agreement that requires them to keep the terms of a settlement confidential. If such a provision was prohibited, void as against public policy, then it would be off the table and parties could speak freely about both the underlying claim and its settlement.

Why does the legal system tolerate secrecy to protect powerful and wealthy people from legal liability? Why does the legal system allow powerful and wealthy people to buy off accusers, including with accusations of rape, with huge monetary payments and then insulate themselves from legal accountability by forcing the accuser as a condition of the settlement to keep the accusation secret?

Good questions, although Gershman’s use of the word “forcing” is disingenuous. No one is forced to do anything. No one forces a victim to go the civil route, go for the money, rather than go to the police, or go to the media. They had a choice of which path to take, and they chose the one lined with dollar signs.

Using hush money to buy silence and then keep the agreement secret is legal in most jurisdictions. But it’s a corrupt arrangement nonetheless. It resembles bribery and blackmail. It obstructs the ability of the justice system to root out dangerous offenders, allows the offender to continue to prey on victims, and corrodes the public’s perception that the justice system is fair and impartial. This is why hush money and secret settlements should be outlawed.

Notably, Gershman doesn’t answer his own questions, instead leaping to the other side of the argument to characterize civil settlements as resembling “bribery and blackmail.” Bribery, yes. Blackmail too. And bribery is exactly what civil settlements with confidentiality are all about. Perfectly legal bribery, of course, but bribery. Same with blackmail. And that’s what both sides are doing in this negotiation.

The part left out by Gershman is that the person making the claim is the one blackmailing the person who did the dirty. Pay up, O’Reilly, or I spill the beans on you.  Here’s your loot, but keep yer yap shut and never mention this again. This, in legal terms, is a contract between two willing parties. There is an offer and acceptance. There is consideration. The deal is done.

Gershman’s problem is understandable, even if he couches it in derogatory characterizations rather than the benign language of the law. When the underlying claim is based on conduct that might otherwise be criminal, that ends up concealing the fact that a party to a settlement could go on to harm other people, paying hush money to conceal it means the criminal remains at large and other victims remain unaware of the threat.

What if confidentiality agreements were prohibited with regard to certain types of claims, such as rape or sexual assault?

Secrecy clauses that cover sexual assault and child sexual abuse would seem to be just the type of agreement that laws should explicitly make invalid as contrary to the public interest. Indeed, California last year enacted just such a statute that prohibits confidentiality clauses in civil lawsuits involving felony sexual assaults and child sexual abuse, and which subjects an attorney who violates the statute to professional discipline. Buying silence is akin to witness tampering, which is unlawful in virtually every jurisdiction.

The fact of a claim doesn’t necessarily prove that the offense occurred. For people whose popularity relies on public perception, a half-credible claim could be enough to destroy a career, especially if they’re controversial. Bear in mind that no one forced the claimant to retain a lawyer to negotiate a settlement rather than head down to the district attorney’s office. A choice was made, and it was made by the person who prefers money to “justice.” Or more accurately, for whom money is justice.

If the avenue of a private, fully-negotiated settlement of a claim, including one for sexual assault, was precluded by law from including confidentiality, there would be substantially less reason to reach a resolution. If the briber wouldn’t get silence, and would be subject to prosecution after paying off his victim, then why pay at all? And if the blackmailer promises to be silent for payment, and could still blab after payment, then they’ve got little to sell.

And if we view this through less hyperbolic characterizations than Gershman uses to inflame our outrage at what happened with O’Reilly, then we’ve chosen to impair the ability of private parties to resolve a dispute in favor of the public interest. If you’re the victim who got $32 million out of the deal, this would cost you bigly.

There is some basis for the claim that confidentiality agreements may sometimes benefit victims of sexual abuse. This may be their only means to obtain some redress for the harm the abuser caused them. That’s certainly not an insignificant consideration, especially given the uncertainties of civil litigation generally and the reluctance of some prosecutors to bring criminal charges, as seen in the failure of Manhattan District Attorney Cy Vance to bring charges against Weinstein. But the benefit to the victim has to be balanced against the danger to the public, and the compelling public interest in exposing sexual predators.

Does the “benefit to the victim” have to be balanced against anything? While Gershman’s arguments, despite the rather flagrant hyperbole, may well apply in some cases, he’s a little too willing to take a huge risk with the victim’s interest for some potential societal benefit. Nobody forced the victim to go for a settlement rather than prosecution. Should they be denied the choice because of some vague public interest? That’s what prohibiting confidentiality would mean. And if the victim ends up being the blackmailed rather than the bribee, everybody loses.

The idea that a crime has been committed, and the public is at risk, concealed behind a confidentiality clause that protects the wealthy is unseemly. But without it, Gershman demands that the victim take a hit for the benefit of society, and that private settlements be rendered untenable. If the claim about O’Reilly’s settlement is true, there are 32 million reasons why a victim wouldn’t go for such an outcome, just as she didn’t go to the DA in the first place.

28 thoughts on “Buying Silence: Should It Be Prohibited?

  1. Skink

    There’s a big, fat fallacy at work: nothing prevents criminal prosecution as a result of settlement agreements with confidentiality clauses. If the facts support criminality, then prosecute. Confidentiality does not preclude prosecution.

    There is also factual flaw: the potential claims against this talking head were workplace sexual harassment. A sexual predator is a repeat criminal. To us lawyer-types, arguments mixing a statutory tort with a crime is buffoonery. But normal folks see stuff like this and link them together. To them, they are the same because some lawyer said so. We can’t make errors, even purposeful ones, because we know this stuff. Nonsense thinking creates wide ignorance.

    1. SHG Post author

      Conduct that could constitutes workplace harassment could also constitute a crime. They are not the same, but they can overlap. And while confidentiality doesn’t preclude prosecution, it could well cost the complaining witness the benefit of the settlement and would likely undermine any cred as a witness.

      1. Skink

        “Conduct that could constitutes workplace harassment could also constitute a crime. ”
        Yes, but the facts are not exclusive. If it’s a crime, prosecute it. One doesn’t preclude the other.

        “And while confidentiality doesn’t preclude prosecution, it could well cost the complaining witness the benefit of the settlement and would likely undermine any cred as a witness.”

        Nope. Settlement with confidentiality affects the rights of the parties; it doesn’t affect the right of the government to prosecute a case. And settlement is not affected by compelled disclosure. It would probably take an order, but that is a rather simple task.

        I see no harm to credibility. The entire settlement agreement is probably irrelevant to prosecution. That leaves the fact of settlement, without any terms. I’m a civil trial lawyer–I do zero criminal. But if I was defending this type of criminal case, I’d think long and hard before bringing up that my client settled with the victim.

        1. SHG Post author

          This could be where experience would clarify things that look different from the outside. A complaining witness who took cash rather than went to the police is a defense lawyer’s dream cross.

          1. Skink

            Don’t get me wrong, I’m not entirely outside. But I still fail to see the logic in telling 6, 8 or 12 normal people that the criminal defendant paid to settle with the victim. To them, that screams guilt.

          2. B. McLeod

            And later on, when they violate the NDA because it was just so egregious, they look pretty stupid even on the civil side of things, because they voluntarily signed the agreement to get the money.

      2. Lucas Beauchamp

        At least in this state, paying someone not to report their victimization to law enforcement is a crime. An agreement that specifically prohibits someone from reporting the conduct to the police is unenforceable. The victim who signed the settlement promising confidentiality and then went right to the cops could keep that nice check.

        The other party couldn’t do anything about it. The courts ordinarily don’t help people undo unlawful contracts, especially when the one trying to get his money back had an attorney.

        Would it be damaging to credibility to breach a settlement agreement? Maybe, but not as damaging as admitting that you had paid someone a wad of money not to go to the cops.

        1. SHG Post author

          While no doubt it happens, no competent lawyer would ever draft an NDA that expressly said such a thing. Nor would it need to.

          1. Skink

            I’ve settled more than a hundred cases with confidentiality. My agreement, and every other that I’ve seen, expressly exclude legally-required disclosures from confidentiality. Mine:

            . . . .and that disclosure of the terms of settlement shall be restricted to those disclosures which are required by law and/or as may be necessary to enable the undersigned to facilitate appropriate tax reporting, or in the conduct of business necessary to complete this settlement

            This isn’t an issue for prosecutions; it’s an issue for media.

            1. SHG Post author

              I’ve never seen a confidentiality clause that doesn’t include the “except as required by law” caveat.

            2. Lucas Beauchamp

              Reporting a crime isn’t legally required. This language literally does not except going to the police, but it would be interpreted as doing so to make it legal and enforceable.

              I’m not sure that settlement agreements are as much about the media—you may have higher profile cases than I do—as they are about the plaintiff’s peers. An employer doesn’t want an ex-employee telling former coworkers about all the money that it paid.

            3. SHG Post author

              A close reading will help get you past the wall. If the DA subpoenas you to testify, you are required by law to appear and answer questions truthfully. You are not legally required to report a crime to the DA. You’re welcome.

            4. Clay S Conrad

              Let’s see. Employers don’t want the offended party telling their co-workers?

              Co-workers will already likely know that a lawsuit was filed or a claim was made. People likely talked before a settlement agreement was reached.

              They’ll likely know when a lawsuit has been dismissed.

              And they’ll sure as hell know that Sheila from accounting is driving around town in a new Ferrari because her new Bentley is in the shop.

              People really aren’t THAT stupid.

          2. Lucas Beauchamp

            Your post sure made it sound as if civil settlement precludes reporting to the police: “No one forces a victim to go the civil route, go for the money, rather than go to the police, or go to the media,” and, “Nobody forced the victim to go for a settlement rather than prosecution.”

            I have had opposing counsel suggest that the settlement agreement specifically prohibit cooperation with law enforcement. A cooler head (mine) prevailed.

  2. Jardinero1

    Sometimes, when you make certain types of contractual arrangements illegal, it doesn’t make them go away. But, it sure does create problems when parties to those banned arrangements have no legitimate legal recourse when one or the other parties feels the arrangement has been violated. When no legitimate judicial means exist for recourse, then that leaves only extra-judicial means.

  3. PseudonymousKid

    Dear Papa,

    Confidentiality agreements are ubiquitous. It’s interesting to ponder what would happen without them. The results might not be so catastrophic as you imagine. There’d be some value still in avoiding discovery and proof and maintaining plausible deniability regardless of the accusations. The blackmailers would move to new and exciting threats that mirror “telling the world.” So the market readjusts and reevaluates the value of civil lawsuits. Oh well.

    It’s just a thought experiment. Such a major change will never happen in my lifetime even if it was or could be completely beneficial. Too much of our systems are calcified for fear of what might occur or simply because of the weight of tradition. It’s going to take a Genghis Khan to get any change. Yes, that means a lot of pain.


        1. SHG Post author

          Things happen for a reason. Sometimes, it’s wrong and should be changed, but one should understand why the fence was erected before tearing it down and finding out afterward that it was a good fence.

  4. Jeff Vail

    Key distinction is tort law v criminal law. Criminal law is intended to address crimes against society. Tort law is intended to *try* to “make right” the harm caused to the individual. Fortunately or unfortunately, everything seems to get reduced to money for compensation in tort. Making confidentiality agreements against public policy would make settlement far more difficult, which runs counter to the strong public policy in favor of settlement. And a confidentiality agreement can’t prevent a victim from being subpoenaed to testify in a criminal case (though, as mentioned, would be great fodder for cross). So the end result of making such confidentiality clauses unenforceable would be (1) more civil cases going to trial, and (2) fewer being filed in the first place because of that burden. Doubt that would help victims much…

      1. Jeff Vail

        Everything about criminal law confuses me… No depositions or lengthy discovery requests? No motions for summary judgment? How am I supposed to churn billable hours?

  5. Noxx

    “By and by is easily said”

    Gershman’s opinion here amounts to drivel in the very tired tradition of arguments about gun control and “hate speech” in that it’s all outrage and no substance. “Something ought to be done!” the people cry.

    “Yeah? What, exactly?”

    Mr. Gershman, kindly suggest to me, even in a rudimentary form, the legislation that would address these nebulous concerns without being laughed out of any court, at any challenge. Pay your lawyer and interject yourself into a case in which you have no standing whatsoever, let me know how that works out.

    I get it, he’s upset, the subject is upsetting. Working oneself into a harangue without a genuine proposal is about as useful as going out to the curb and shouting at traffic.

    1. LocoYokel

      going out to the curb and shouting at traffic

      Wait, you don’t do that? Maybe that explains the strange looks I get all day and people handing me dollar bills.

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