These are NOT the only physical possibilities -- a janitor of the NRA
or a housecleaner of the employee (or a garbageman of either) could
have stumbled across the document and handed it to the press. In
neither case would the discoverer be an "agent." He or she might be
doing something illegal (or might not; depends on the care taken by
the party whose copy was disclosed). Remember the video rental records
found in the Supreme Court nominee's trash?
Rollie Cole
On Wed, Nov 2, 2011 at 3:59 PM, Henry Lowenstein <[log in to unmask]> wrote:
> One thing no one seems to address in the media is who breached the NDA in
> the first place. Since it is a confidential personnel matter only two
> entities could have given it to Politico, (A) the NRA or one of its agents,
> or (B) the employee or one of her agents. Without one of those entities
> breaching the NDA this story would never have been known. So the two
> parties involve have to resolve that issue as the starting point on any
> legal matter.
>
> HL
>
>
>
>
> Henry Lowenstein, PhD
>
> Professor of Management and Law
>
> E. Craig Wall Sr. College of Business Administration
>
> Coastal Carolina University
>
> P.O. Box 261954
>
> Conway, SC 29528-6054 USA
>
> (843) 349-2827 Office
>
> (843) 349-2455 Fax
>
> [log in to unmask]
>
> www.coastal.edu
>
>
> ________________________________
> From: Academy of Legal Studies in Business (ALSB) Talk
> [[log in to unmask]] On Behalf Of Maurer,Virginia G
> [[log in to unmask]]
> Sent: Wednesday, November 02, 2011 4:12 PM
> To: [log in to unmask]
> Subject: Re: It is official!
>
> Mmmm. Well, Cain was an agent of NRA. So I wonder what NRA promised. Not to
> comment on allegations that had been made by the departing employee? Who
> knows, since we don't know what the agreement said (so far as I know). But
> Cain would be bound by whatever NRA agreed that it and its agents would or
> would not do, whether he knew about it or not.
>
>
>
> I suppose someone surely has written on the limits of these agreements. I
> assume public policy would exclude from the agreement the discussion of
> evidence criminal behavior -- that is, a contract to cover up a crime is
> obviously not enforceable. What less than criminal behavior? Civil fraud?
> Violation of civil rights? What about just facts that constitute violations
> of public policy? Somebody out there is ALSBTALK-land has thought this
> through or researched it or read someone's research on it.
>
>
>
> Ginny
>
>
> ________________________________
> From: Academy of Legal Studies in Business (ALSB) Talk
> [[log in to unmask]] on behalf of Henry Lowenstein
> [[log in to unmask]]
> Sent: Wednesday, November 02, 2011 3:59 PM
> To: [log in to unmask]
> Subject: Re: It is official!
>
> Lee:
>
> I agree with your description of Toobin's comments as I rolled my eyes
> listening to him as well
>
> The answer to your question is that it really depends on the specifics of
> the agreement. The NYTimes today claimed that it was not a "settlement
> agreement" but a "severance" agreement. It has become a generally standard
> procedure among many organizations today to condition a severance payment
> regardless of issue (or even if there is no issue) on a release and NDA to
> protect the organization against some potential unknown
> post-employment charge of an employee. Its the nature of the web of
> employment laws today and you'll see that even in CEO contracts. That being
> the case, the fact that a severance contract has a NDA and release in
> it, per se does not evidence there was anything wrong or alleged. That's
> the way of the world in employment these days.
>
> Even if it was a "settlement" agreement, the question is settlement for
> what? Often times a firm is confronted with an employee who is a poor
> performer. Even in the best organizations that gives warnings, the employee
> does not improve and is terminated. The next thing that happens is a
> disgruntled employee attempts to retaliate by raising all kinds of
> discrimination issues as a pretext to getting a better severance or
> just "getting back" at the company. Even a totally meritless claim eats up
> company time, expense and corporate legal costs. So many organizations
> simply settle for some kind of severance, typically 6 mo. to 1 year and with
> a release. It is a form of "green mail" but with almost no chance of a firm
> being indemnified for a frivolous or vexatious employee claim, this is the
> way firms try to contain costs of potential questionable charges.
>
> The second big question was who are the parties to the agreement? What we
> know so far is that it was between the employee and the NRA with Cain
> knowing nothing about it, not part or party to the agreement and not privy
> to its terms. While that might seem strange if correct, Cain is not
> necessarily a party covered by the NDA. If Cain was not a party and not
> privy to its terms then his statements do not impact the contract, only the
> NRA and the employee are subject to it. Again, depends on the facts and
> contract language which we don't have at the moment.
>
> In states in which I have worked, NDA's are enforceable and enforced by
> courts. They are typically subject to a "reasonableness" standard. The
> consequence for breach is usually written in the contract. In most cases, I
> recall their are liquidated damage clauses, typically dealing with legal
> fees and return of the severance payment with interest.
>
> Now the interesting political angle might be this. Again, according to the
> NY Times the severance was $30,000 or so. One could see some opposition
> group, telling the alleged employee to go and speak out, don't worry about
> breaching the agreement and they then indemnify her for any damages from
> breach. Because the amounts are so relatively small against campaigns that
> spend in the millions, this is probably more likely than not and not out of
> reality given today's nasty politics.
>
> In any event, Toobin and other so called TV legal commentators should be
> more careful about making comments before the facts are known.
>
>
>
> Henry Lowenstein, PhD
>
> Professor of Management and Law
>
> E. Craig Wall Sr. College of Business Administration
>
> Coastal Carolina University
>
> P.O. Box 261954
>
> Conway, SC 29528-6054 USA
>
> (843) 349-2827 Office
>
> (843) 349-2455 Fax
>
> [log in to unmask]
>
> www.coastal.edu
>
>
> ________________________________
> From: Academy of Legal Studies in Business (ALSB) Talk
> [[log in to unmask]] On Behalf Of Lee Reed [[log in to unmask]]
> Sent: Wednesday, November 02, 2011 2:05 PM
> To: [log in to unmask]
> Subject: Re: It is official!
>
> In light of the bumbling way CNN's Jeff Tubin handled the enforceability of
> Herman Cain's sexual harassment confidentiality agreement, I would
> appreciate enlightenment from some of you who know about such
> agreements.For instance, what would be the damages in this instance if
> Cain's accuser came forward with her story in violation of the agreement? A
> return of the settlement? Liquidated damages? And would a court enforce any
> kind of damages once Cain speaks out (even though he didn't sign the
> agreement as CEO of the Restaurant Association)? .
>
--
Rollie Cole
5902 Westslope Drive
Austin TX 78731-3655
512-537-0898
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