Journal of Free Speech Law: “Breach Agents: The Legal Liability of Third Parties for the Breach of Reputational NDAs,” by Mark Fenster
The article is here; the Introduction:
Over the past decade, nondisclosure agreements intended to protect the reputation of one or both parties from embarrassing disclosures have failed, sometimes spectacularly. Among those humiliated by revelations of their past behaviors are Donald Trump, Vince McMahon, Neil Gaiman, and Harvey Weinstein; among those companies and institutions affected are the Catholic Church, the Miss USA Pageant, and some of the largest tech companies. These agreements’ failures have occurred when one party to the agreement gave an interview, passed along leaked documents, or filed a public lawsuit that became the basis of public reporting about the secrets that the contract concerned, as well as about the contract itself. Commentators and critics have offered various prescriptions to stem the enforcement of the most egregious contracts intended to prevent a party from reporting sexual assault and harassment that violates criminal or civil law. In a recent article, I described the specific doctrinal, social, and informational dynamics that both render such contracts vulnerable to breach and frustrate their enforcement.
This Article considers the potential liability of third parties that assist or spur the breach of such contracts. Journalists have most frequently played key roles in these disclosures by contacting a party a
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