WAG Egregious

[Deleted member 18037]

Ok it seems it is not the age but the fact that it was sexual assault that mades the NDA unenforceable

Under California law, confidentiality agreements are not enforceable if they are a part of civil settlements which involve some potential crimes including felony sexual assault and child sex abuse.

http://time.com/5003827/non-disclosure-agreements-sexual-assault/

 

[LGnyc]

You folks in the US do know that non-disclosure agreements are pretty much the norm for settlements in sexual assault and sexual harassment cases now, right? And that both your state legislatures and Congress have offices that manage settlements and confidentiality agreements relating to alleged wrongful acts committed by your legislators and their staff members?

I looked through the filing quickly. The allegations are indeed appalling. I wonder, though, given the existence of the CA law barring confidentiality/ND agreements in a case of alleged sexual assault against a minor, why Maroney's attorneys would have advised signing in the first place.

MSU looks to me to be in big trouble here, even bigger trouble than USAG.

It is standard and it needs not to be. Which is why I applaud Microsoft for being the first company to decry and eliminate such agreements. They are also supporting legislation that will do the same. The question is whether our gov't will actually do what they should to bring this out into the light. Their block of Sen Kaine who tried to reveal what was taking place in Congress itself does not bode well.

 

[mommyof1]

Ok it seems it is not the age but the fact that it was sexual assault that mades the NDA unenforceable

Under California law, confidentiality agreements are not enforceable if they are a part of civil settlements which involve some potential crimes including felony sexual assault and child sex abuse.

http://time.com/5003827/non-disclosure-agreements-sexual-assault/

Yes, the agreements are not permitted if the crime was prosecutable as a felony OR if the victim was a child. That is what I was saying above.

Not all such assaults are felonies, but my quick skim of the civil complaint indicates that Maroney's attorney is pursuing the felony angle (he quotes the provision relating to felonies).

 

[profmom]

Ok it seems it is not the age but the fact that it was sexual assault that mades the NDA unenforceable

Under California law, confidentiality agreements are not enforceable if they are a part of civil settlements which involve some potential crimes including felony sexual assault and child sex abuse.

http://time.com/5003827/non-disclosure-agreements-sexual-assault/

What civil settlement? Maroney had not at that point filed suit.

 

[Deleted member 18037]

What civil settlement? Maroney had not at that point filed suit.

She had to have had a settlement to sign the NDA, which was part of the settlement.

 

[profmom]

She had to have had a settlement to sign the NDA, which was part of the settlement.

As I said, we do not know what the NDA contains without seeing it. It sounds to me like it's a simple contract. You can't settle a lawsuit without filing a lawsuit.

There are two ways these things can work. (Channeling my naming/blaming/claiming lecture.) First, an individual recognizes an injury, picks someone to blame, and then claims by filing a suit. At that point, the suit will go forward, will be dismissed on summary judgment after the defendant has requested it, or, as in the overwhelming majority of cases, it will settle. The lawyers will reach an agreement where something in the middle happens -- the plaintiff generally doesn't get all the relief requested, but the defendant pays up something. The settlement may incorporate other provisions; in personal injury and other kinds of tort cases, a NDA is a very common provision, as is a clause in which the defendant denies culpability. A settlement usually also incorporates an agreement by both parties not to make further claims.

However, sometimes the PROSPECTIVE plaintiff names the injury and identifies someone to blame, but before initiating a claim in the legal system, goes directly to the PROSPECTIVE defendant and says something along the lines of, "you've injured me in a way that implies legal liability." At that point, the prospective litigants may enter into a contract. The contract in this case would generally involve a promise by the prospective plaintiff not to sue and could also incorporate a NDA. The attorneys would negotiate liquidated damages for breach, usually a provision that if the victim breaches by disclosing or suing, the victim must pay back the contracted amount and possibly something beyond it. I suppose one could also negotiate specific performance as a remedy, requiring a court to dismiss any lawsuit filed.

What is probably happening here is that Manly is laying the groundwork for a claim that the NDA contract (not settlement!) should be void as against public policy but Maroney should be able to keep the money.

 

[Deleted member 18037]

What is probably happening here is that Manly is laying the groundwork for a claim that the NDA contract (not settlement!) should be void as against public policy but Maroney should be able to keep the money.

And I am assuming get even more money?????

 

[mommyof1]

Definitely not going to argue with a civ pro (or torts? contracts?) prof! So, for clarification, what you are saying is that the definition of "action" in the CA code of civil procedure does not cover potential actions not yet filed, so the agreement described in paragraph 72 of the complaint is not actually covered by the prohibition on nondisclosure agreements, and Manly is instead using the prohibition as evidence that the agreement is against public policy?

 

[profmom]

Mommyof1, you'd need an expert on CA law to tell us how courts have read the statute (I am too lazy to do the research myself), but the language quoted by Manly himself in the press release linked above says a civil action. That means a lawsuit, not a threat of one. Again, remember that Manly is very aware of his public audience here. Not everything he is saying is being said with the judges in mind. Just look at the reaction from the media and right here if you want to know if this strategy is working for him.

And I am assuming get even more money?????

Well, yes, that would be the point of the civil lawsuit he just filed on her behalf. I don't recall his having put a number in the filing just made, but he is looking for compensatory and punitive damages from all parties, including USOC, USAG, and MSU. He's also included Does 1-500 so he can easily amend to add more named defendants.

 

[B&M's mom]

There's also an issue of what she was seeking from USAG and what was actually settled. It's possible she was not accusing them of abuse but some other claim related to the abuse. Depending on what her accusations were, there may not have been a direct link to a potential felonious sex abuse or child sex abuse case. So if she settled some other claim, then the NDA may be enforceable. It's unlikely that USAG did not have good lawyers who would know what was permissible drafting the agreement.

 

[raenndrops]

Ok it seems it is not the age but the fact that it was sexual assault that mades the NDA unenforceable

Under California law, confidentiality agreements are not enforceable if they are a part of civil settlements which involve some potential crimes including felony sexual assault and child sex abuse.

http://time.com/5003827/non-disclosure-agreements-sexual-assault/

But if the NDA was with USAG (not Nassar), they didn't commit the sexual assault, so would it still be unenforceable?

 

[Gymmommy71]

I don’t really care about the legality of the NDA or how much money Mikayla gets or not gets (she deserves a lot more than whatever she got as do all the other victims), I’m just very appualed that the USAG tried to hide the abuse, at all! The minute anyone in that organization, including coaches like the Karolyis and Geddert, knew about Nassar, the response should have been to instantly fire him (not let him resign w/ dignity and thanks/appreciation), report him to the police and send out an communication that he is a bad dude. The fact that they made any moves at all to hide things to save his and their reputation shows that they can’t be trusted. How many other Nassars have they covered up? How many other girls are on NDAs payed off w/ hush money by our dues and sponsor money? I find it all disgusting.

 

[Flyaway]

profmom, I wish there was a bowing in awe emoji. Thanks for your explanations. This is all so highly emotionally charged, it's easy to just jump on one ship and ride it into the ground, so I appreciate understanding some of the ins and outs. We (the general public) are simply not going to know all the details.