AO, AO, AO: Weinstein’s men and the long arm of the law

The FT has published a detailed story (£) on Non-Disclosure Agreements (NDAs) with Allen & Overy the focus, for having represented Harvey Weinstein during a sexual harassment claim. Of course, Harvey W is as entitled to legal representation as the next rich, white male,* and NDAs are a common practice where unsavoury allegations are made (compare the hacking allegations where MPs were outraged with the idea that silence could be bought in such a way). There are however, one or two unusual features of the case which merit attention. The FT reports this about the clauses:

One of the clauses of the NDA says that if “any criminal legal process” involving Harvey Weinstein or Miramax requires her to give evidence, she will give 48 hours notice to Mark Mansell, a lawyer at Allen & Overy, “before making any disclosure”.

In the event her evidence is required, “you [she] will use all reasonable endeavours to limit the scope of the disclosure as far as possible”, the agreement says, adding that she will agree to give “reasonable assistance” to Miramax “if it elects to contest such process”.

It would be interesting to know how standard such clauses are, seeking as they do, to inhibit any police investigation. For me they raise the question as to whether they are intended to pervert the course of justice. According to CPS guidance, the offence is committed where a person: ”does an act (a positive act or series of acts is required; mere inaction is insufficient); which has a tendency to pervert; and, which is intended to pervert the course of public justice.” One does not have to show an actual perversion occurred, and the offence plainly applies to police investigations. Indeed, “any act that interferes with an investigation or causes it to head in the wrong direction may tend to pervert the course of justice.”

Of course one could argue that such clauses are a necessary prophylactic against vexatious complainants. So if the woman in this story had been judged to be vexatious then the 48-hour warning would provide a useful tool for warning the police of her weaknesses as a witness. A quarter of a million in damages and, “days of gruelling questioning at Allen & Overy’s London office, capped by a 12-hour session before a phalanx of Mr Weinstein’s lawyers that broke at 5am,” does not suggest that Weinstein or his lawyers thought the claims were without merit, and nor does the clause requiring Weinstein to seek therapy, but I can’t rule the possibility out.

Even so, the requirement for her to limit disclosure to the police is, on the face if it – and I would welcome other explanations from experienced employment lawyers – a strange requirement which – again on the face of it – has significant potential to interfere with any police investigation. One could argue that the fact that Zelda Perkins was represented in the negotiation of the NDA protects against the problem, but, “All that is necessary is proof of knowledge of all the circumstances, and the intentional doing of an act which has a tendency, when objectively viewed, to pervert the course of justice.” Perhaps there is something in the negotiations which would lead us to the view that the agreement would not have that tendency. I suspect we will hear more.

Buried in that paragraph is the second feature of this case that merits attention. The lengthy questioning sessions, if they are accurately reported, are – I understand – unusual. Were A&O playing out US-style dispositions for their US client; was it part of the need to satisfy Miramax that there was a claim needed to be settled? Perhaps but, if accurately reported, the approach is heavy-handed to the point of unreasonableness – so why would Ms Perkin’s lawyers go along with it? More mystery. Ms Perkins says this in the FT story, “I was made to feel ashamed for disclosing his behaviour and assault, and expected to name those I had spoken to, as if they too were guilty of something,” she says. Were those people’s names being sought to establish if there was a wider problem that Miramax needed to take seriously, were they being taken to seek evidence capable of undermining Ms Parkins, and/or were those individuals also to be approached to ensure their non-disclosure? How far was corporate wrongdoing reported up the chain? The questions go on.

We do not know that A&O went too far when negotiating this agreement, but one more point for readers thinking that a reputable firm like Allen & Overy should not face such questions. Think back to the Dahdaleh case, a serious bribery trial knocked sideways by allegations that Allen & Overy had pressurised prosecution witnesses in the week before a major trial. One of the witnesses, in that case, was reported as saying this:

“It was very clear to me that they came to the meeting wanting to pressurise me and influence what kind of testimony I will give here,” he told the court.

“He (one of the lawyers) was telling me what I needed to say and I found that very intimidating,” he said.

The two partners from Allen & Overy implicated then sent Alex Cameron QC to speak for them as to why they should not be committed for contempt. A main part of their defence was that they were inexperienced in criminal cases in this Country (one was a US lawyer, the other not a criminal lawyer). The lawyers negotiating Weinstein’s NDA no doubt had similarly limited experience of the criminal process, but that does not remove the concerns about the content of, and process that led to, these NDAs.

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* Other demographics are similarly entitled, but in a somewhat more theoretical sense.

5 thoughts on “AO, AO, AO: Weinstein’s men and the long arm of the law

  1. These NDAs seem to be walking a very thin line. Would it be possible to ensure that these are logged with a confidential public body, with authority to suggest the police or at last the employer investigate if, for example, multiple similar NDAs are logged with the same offender.

  2. Thank you for raising these questions – if this is a widespread practice, the ethics of it should be openly debated in the legal community. You rightly raise concerns about the conduct of the Allen & Overy lawyers (disappointing for such an excellent firm) but I was also left wondering about those representing Ms Perkins. To me, this entire topic requires airing and perhaps some soul searching on the part of the profession. I think we can conclude based upon what we know, that Ms Perkins claims were not vexatious, and I don’t see what difference the 48 hours would make to discussions with the police. Surely they wouldn’t stop any investigation just because the alleged perpetrator’s lawyers made representations about the alleged victim? At least not anymore. So, what could be the justification for this and more importantly WHY was Ms Perkins not even given a copy of the agreement she signed?? Doesn’t this indicate that they knew that what they were doing didn’t quite pass the smell test at least???

    1. I’m guessing that they wanted the bits that said, for instance, that Weinstein had to go to counselling (again assuming this is accurately reported), or what the payment was, and anything which would support and admission of culpability, out of her hands.

  3. Thank you for this interesting article on a possible criminal law analysis of these very aggressive gagging clauses.

    Looking at them from a strictly contractual perspective, there are credible arguments – and you suspect that A&O would have known this – that they are simply unenforceable, on grounds that (A) they are contrary to the doctrine of illegality, being directed at an aim that is either unlawful or contrary to public policy (the public policy that police investigations should proceed with unfettered access to witnesses) and/or (B) the public interest/iniquity exception to duties of confidence.

    (B) is perhaps particularly apposite: the exception emerged to protect a party who breached confidence where “the facts justified [that breach]… because the plaintiff had behaved so disgracefully or criminally that it was judged in the public interest that his behaviour should be exposed”.

    The general impression is of a rather menacing style of lawyering against under-informed and ill-resourced (even vulnerable) opponents. Sad!

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