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Wave of Sexual Misconduct Claims Warrants Looks at Confidentiality, Nondisclosure Agreements

By Steven I. Adler and Lauren X. Topelsohn

There is a lot of truth to the saying that “it takes years to build a reputation and only seconds to destroy it.” Yet, some bad reputations are well deserved. Roger Ailes and Bill O'Reilly, both formerly of Fox News, Harvey Weinstein, formerly of The Weinstein Company (TWC), Roy Price, formerly of Amazon Studios, TV host Charlie Rose, and actor Kevin Spacey are a few high-profile media and entertainment industry examples. All were taken down by allegations of sexual harassment and/or sexual assault. A company's reputation is also easily tarnished.

Companies try to protect their reputations from executives who have “gone wild” by including moral turpitude clauses as a basis to terminate executives for cause under their employment agreements. Similarly, in the context of employment disputes, companies try to protect themselves through the use of non-disclosure, non-disparagement and confidentiality provisions in settlement agreements.

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