{"id":28887,"date":"2016-08-12T13:54:14","date_gmt":"2016-08-12T17:54:14","guid":{"rendered":"http:\/\/sidebarforplaintiffs.naomifein.net\/?p=28887"},"modified":"2016-08-12T13:59:42","modified_gmt":"2016-08-12T17:59:42","slug":"mel-gibsons-settlement-agreement-with-non-disclosure-clause","status":"publish","type":"post","link":"https:\/\/sidebarforplaintiffs.naomifein.net\/?p=28887","title":{"rendered":"Mel Gibson’s settlement agreement with non-disclosure clause"},"content":{"rendered":"

I don’t care for Eugene Volokh’s politics but he is a lawyer and did all of us a favor today by laying out the details and legal considerations concerning one particular settlement agreement–which of course can be extrapolated to all settlement agreements with non-disclosure clauses–and how the settlee<\/em> breached it.<\/p>\n

Maybe more interesting than usual because the settler<\/em> was Mel Gibson. (But never mind: it could be you<\/em>. Oh, and Howard Stern is featured here, too.) (Got to tell you, as a lay expert in Scottish history, I can’t confirm that William Wallace woaded his face, i.e., painted half of it blue. I mean, I was there! I would’ve seen it.)<\/p>\n

In the piece Volokh mentions that oh-no case when a teenager burbling on Facebook breached her father’s non-disclosure agreement and Dad had to give back more than half of the money.<\/a><\/p>\n

[Eugene Volokh] \u2018Bust a deal, face the wheel’: Mel Gibson, confidentiality provisions and the First Amendment<\/a><\/em><\/p>\n

Posted: 11 Aug 2016 03:13 PM PDT<\/em><\/p>\n

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Mel Gibson, king of the Woad, in \u201cBraveheart.\u201d (Paramount Pictures)<\/p>\n<\/div>\n

Tuesday\u2019s decision in M.G. v. O.G. (Cal. Ct. App. Aug. 9, 2016)<\/a> involved Mel Gibson\u2019s settlement agreement with Oksana Grigorieva, the mother of Gibson\u2019s child. Gibson had brought an action \u201cto establish his paternity of the couple\u2019s daughter,\u201d and Grigorieva in turn sued \u201casserting civil claims for battery and defamation.\u201d The parties settled the claims, declaring that Gibson was the child\u2019s father, agreeing that Gibson would pay Grigorieva \u201ca total of $750,000 in three equal installments spread over the course of five <\/em>years,\u201d and agreeing that Grigorieva would \u201ckeep confidential \u2018any and all information and facts related to the asserted claims and events underlying this Agreement.’\u201d The deal provided that, if Grigorieva breached the confidentiality agreement, she would forfeit \u201call outstanding installments of the $750,000 settlement payment.\u201d<\/em><\/p>\n

But after Gibson paid the first $250,000, Grigorieva went on the Howard Stern radio show, and said, among other things:<\/em><\/p>\n

[Grigorieva]: I wanted to thank you so much for support when I had so much criticism. I really appreciated you for what you were saying.<\/p>\n

[Stern]: I want to thank you for saying that because I will support you to the end. I don\u2019t care what the circumstances are. You do not treat a woman that way, especially the mother of your child.<\/p>\n

[Grigorieva]: Thank you\u2026.<\/p>\n

[Stern]: Anyone who\u2019s been through what you\u2019ve been through with [Gibson], you got to be full of hope, because it\u2019s the only way to be. You got to look ahead.<\/p>\n

[Grigorieva]: You know what? [Y]ou have to embrace your experience and even \u2014 it doesn\u2019t matter how painful it might be at the time, and that darker experience, learn from it, hopefully, lessons and . . . there\u2019s light and definitely . . . follow what you had in you as a child, that dream. That is awesome.<\/p>\n

[Stern]: Well, you\u2019re making a lot of sense.<\/p>\n

[Grigorieva]: It\u2019s good. [Y]ou know, in a way, I realize that experience that I went through, I\u2019m going to have to help others. That\u2019s \u2014 I\u2019m ready to help and I\u2019d really like to make a difference.<\/p>\n

[Stern]: How do you plan on doing that?<\/p>\n

[Grigorieva]: I\u2019m going to open domestic violence charity.<\/p><\/blockquote>\n

Gibson asked the court to discharge him from having to pay the rest of the $500,000, on the grounds that Grigorieva\u2019s statements violated the settlement agreement; the trial court agreed, and the California Court of Appeal agreed as well (paragraph break added):<\/em><\/p>\n

Construing the \u201crelated to\u201d language according to its popular meaning and in the context of the larger instrument\u2019s purpose, it is reasonable to infer that the parties intended the confidentiality clause to encompass not only express statements about [Grigorieva]\u2019s domestic violence claims against [Gibson], but also implicit assertions about those claims made through reference to what others [here, Stern] might say.<\/p>\n

Thus, even accepting [Grigorieva]\u2019s premise that she was not required to control what others would say, nor prohibited from speaking about domestic violence generally, it still follows from the language of the confidentiality clause that she could not insinuate [Gibson] committed domestic violence on her by piggybacking on Stern\u2019s comments about what she had \u201cbeen through with [Gibson].\u201d<\/p>\n

Given the proper interpretation of the confidentiality clause, the court\u2019s breach of contract finding was plainly supported by substantial evidence. . . . When Stern referred to what [Grigorieva] had \u201cbeen through with [Gibson],\u201d [Grigorieva] responded by talking about the \u201cexperience that I went through,\u201d which was \u201cpainful\u201d and compelled her to \u201chelp others\u201d by opening a \u201cdomestic violence charity.\u201d The court found this exchange, taken in context with the \u201cinterview as a whole,\u201d \u201cclearly implie[d] that [Grigorieva] suffered domestic violence at the hands of [Gibson].\u201d This was a reasonable inference to draw from the evidence.<\/p><\/blockquote>\n

And the court concluded that enforcing the agreement wouldn\u2019t violate the First Amendment \u2014 parties have a right to promise not to speak, and to agree that they would forfeit certain benefits if they violate that promise. That, I think, is quite correct. In Cohen v. Cowles Media Co. (1991), the Supreme Court held that a court can even award damages based on the breach of a promise not to speak (including when the speech deals with a political controversy). Given that, a court can certainly rescind an agreement based on the breach of such a promise. For a similar settlement agreement case, see Gulliver Schools, Inc. v. Snay (Fla. Ct. App. 2014)<\/a>, where a family lost an $80,000 settlement when the parents told their daughter about the settlement \u2014 in violation of the agreement \u2014 and the daughter then posted a Facebook post saying, \u201cMama and Papa Snay won the case against Gulliver. Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT.\u201d<\/em><\/p>\n

The matter may sometimes be different when one of the parties is a government agency<\/a>: The First Amendment may limit government agencies\u2019 power to extract promises not to speak as a condition of government benefits, perhaps including as a condition of a settlement agreement. But here both parties were private individuals, as they were in Cohen v. Cowles Media.<\/em><\/p>\n

Now, state law may sometimes make some promises not to speak unenforceable, for instance if they are unexpected provisions buried deep in a consumer contract, or to the extent that the provisions seek to bar people from testifying in court. And sometimes such contracts might not be enforceable through an injunction, though sometimes they might be (see this post<\/a> for an interesting example).<\/em><\/p>\n

But a clear promise not to speak, entered into in exchange for a substantial financial settlement, that is then breached by a person\u2019s speaking to the media can indeed be enforced (here, by canceling the obligation for which the confidentiality promise was exchanged). I\u2019m not fond of what I know of Mel Gibson as a person, and if he was indeed guilty of beating Grigorieva, he should be rightly excoriated for that. In this instance, though, he seems to have been legally in the right.<\/em><\/p>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

I don’t care for Eugene Volokh’s politics but he is a lawyer and did all of us a favor today by laying out the details and legal considerations concerning one particular settlement agreement–which of course can be extrapolated to all … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1175],"tags":[1110,71,518],"class_list":["post-28887","post","type-post","status-publish","format-standard","hentry","category-the-facts-of-life","tag-breach-of-settlement-agreement","tag-non-disclosure-settlement-agreements","tag-settlements"],"aioseo_notices":[],"aioseo_head":"\n\t\t\n\t\n\t\n\t\n\t\n\t\n\t\n\t\t