NDAs and Sexual Assault: A Predatory Practice is Revealed in Hollywood - Fordham Intellectual Property, Media & Entertainment Law Journal
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NDAs and Sexual Assault: A Predatory Practice is Revealed in Hollywood

NDAs and Sexual Assault: A Predatory Practice is Revealed in Hollywood

On October 5, 2017, the New York Times uncovered that Harvey Weinstein had settled allegations of sexual assault by having his accusers sign non-disclosure agreements (NDAs), after paying them large sums of money.1 Typically, NDAs make it so that the signing party cannot discuss the terms of the settlement, or bring suit for their claims through litigation.2 If the party discusses the settlement or engages in litigation related to the claim, the other party can file suit against the signing party for damages and relief.3 It has been revealed that Hollywood power-player, Harvey Weinstein, has had at least eight women sign NDAs regarding their sexual assault allegations concerning Weinstein.4 However, some of those women are breaking the agreements to come forward about their assaults and experience with the infamous director.5

Many women who are speaking out about their experience with Weinstein have emphasized his influence over the entertainment industry.6 At the time of the alleged assaults, the victims were often struggling actresses and did not have many connections or any influence in Hollywood.7 This often created an impossible power dynamic, where the women felt they had no choice but to sign the NDA. 8 Other famous men in the media, such as Bill O’Reilly, have been accused of similar allegations, in which the same power dynamic is at play.9

As more allegations about Hollywood’s elite preying on those without influence are revealed, legislators and lawyers are grappling with whether NDA’s should be allowed for sexual assault claims at all.10 The NDAs are often drafted in circumstances where the accused has much more power than the accuser, creating a dynamic where the victim may be coerced into signing an NDA that they do not want to sign, or an NDA that the victim does not fully understand.11 One California legislator is proposing to ban NDAs for sexual assault allegations outright, giving victims additional power to voice their stories and litigate their claims.12 It will be proposed in January of 2018, and could change the legal landscape for sexual assault in the entertainment industry, particularly since California is the hub of the media.13 In addition to the California proposal, New Jersey legislators are also planning to introduce legislation that will ban NDAs concerning sexual assault claims.14 Whether these bill will pass and whether other states will follow suit is a question that has yet to be answered.  However, as more predatory NDAs regarding sexual assault and famous Hollywood figures are revealed, it is becoming more and more apparent that action should be taken to end this predatory practice.

  1. Jodi Kantor and Megan Twohey, Harvey Weinstein Paid Off Sexual Harassment Accusers for Decades, N.Y. Times (Oct. 5, 2017), https://www.nytimes.com/2017/10/05/us/harvey-weinstein-harassment-allegations.html [https://perma.cc/68ZD-5N7S].

  2. ichelle Fabio, The Harvey Weinstein Effect: The End of Nondisclosure Agreements In Sexual Assault Cases?, Forbes (Oct. 26, 2017), https://www.forbes.com/sites/michellefabio/2017/10/26/the-harvey-weinstein-effect-the-end-of-nondisclosure-agreements-in-sexual-assault-cases/#55ef6cb42c11 [https://perma.cc/33X3-2Q7B].

  3. Id.

  4. Kantor, supra note 1.

  5. Id.

  6. Id.

  7. Id.

  8. Id.

  9. Emily Steel and Michael S. Schmidt, Bill O’Reilly Thrives at Fox News, Even as Harassment Settlements Add Up, N.Y. Times (Apr. 1, 2017), https://www.nytimes.com/2017/04/01/business/media/bill-oreilly-sexual-harassment-fox-news.html?_r=0 [https://perma.cc/C4KB-E7D7].

  10. Connie M. Levya, Senator Levya: Ban Secret Settlements in Sexual Assault and Harassment Cases, California State Senate Majority Caucus (Oct. 19, 2017), http://sd20.senate.ca.gov/news/2017-10-19-senator-leyva-ban-secret-settlements-sexual-assault-and-harassment-cases [https://perma.cc/B3MZ-32NC].

  11. Id.

  12. Id.

  13. Id.

  14. New Jersey lawmakers seek to ban non-disclosure agreements for sex assault, CBS News (October 23, 2017), https://www.cbsnews.com/news/new-jersey-lawmakers-seek-to-ban-non-disclosure-agreements-for-sex-assault/ [https://perma.cc/W43F-RFH9].

Lindsey Eckert

Lindsey is a second-year student at Fordham University School of Law and a staff member of the Intellectual Property, Media & Entertainment Law Journal. She holds a B.S. from The Ohio State University.