Weinstein’s investigations — and settlements

Harvey Weinstein, assisted by the law firm of celebrated attorney David Boies, “hired private investigators, including ex-Mossad agents, to track actresses and journalists.” At least one agent used false names and identities to insinuate herself into accusers’ and journalists’ circles. “Techniques like the ones used by the agencies on Weinstein’s behalf are almost always kept secret, and, because such relationships are often run through law firms, the investigations are theoretically protected by attorney-client privilege, which could prevent them from being disclosed in court.” [Ronan Farrow, The New Yorker]

Would it help to abolish confidentiality in settlements, as some urge? “California State Sen. Connie Leyva… said she plans to introduce a bill next year to prohibit nondisclosure agreements in financial settlements that arise from sexual harassment, assault and discrimination cases. The rule would apply to public and private employers, she said.” [Danielle Paquette, Washington Post “WonkBlog”] “Getting rid of NDAs reduces accusers’ bargaining power so they end up with lower money settlements or perhaps no settlements,” notes HLS Prof. Jeannie Suk Gersen on Twitter and at more length in The New Yorker. Might that impair their chance of getting a private lawyer interested in their case in the first place? “[We would be choosing] to impair the ability of private parties to resolve a dispute in favor of the public interest.” [Scott Greenfield]


  • Heck, I’d get rid of confidentiality in ALL settlements. I’d even create a public registry which included the entire settlement agreement, including dollar amounts. Arbitration awards too, just so that wouldn’t be a loophole.

    Yes, it’s going to reduce the value of the settlement if accusations can’t be kept a secret. But that extra value is a built-in blackmail/bribery, whether or not it’s intended that way. “Pay me or I go public”, or “here’s money to shut up about what I did to you” – either one is unacceptable to me.

  • Yep. The settlement should be about compensating the victim/plaintif to the value of their loss, not to the cost of public disclosure to the defendant.
    Weinstein would have been brought down decades ago had not encouraged plaintiffs to cash out at the higher non-disclosed value.

    Then we wouldn’t have ilk like Meryl Streep pretending to be shocked that this ever happened in their Hollywood. They all knew, and if they didn’t get to the top on their own backs, then they got there knowingly crawling over the bodies of those who did get abused.

  • Agreements with public entities are already available under California’s laws concerning access to public records so it’s covered as far as interests in public entity expenditures and management. Publicity is a deterrent to a victim seeking compensation as much as it is to a perpetrator continuing to perpetrate, and NDAs are requested by accusers as well as the accused. If a victim has the misfortune of being victimized by a person in the public eye, do we really want to make that publicity a condition for seeking compensation?