On Friday, former New York City Mayor and 2020 Democratic presidential candidate Michael Bloomberg announced his company, Bloomberg LP, would work with three women to release them from nondisclosure agreements that they signed after filing complaints against the billionaire. He said his company had identified three NDAs “that we signed over the past 30-plus years with women to address complaints about comments they said I had made.”
“If any of them want to be released from their NDA so that they can talk about those allegations, they should contact the company and they’ll be given a release,” the Bloomberg campaign said in a statement.
Bloomberg had said he would not waive any NDAs just a few days earlier during the Nevada debate, and in prior interviews on the subject. The change of heart comes after his fellow presidential candidate, Massachusetts Sen. Elizabeth Warren, led a campaign to force his hand. On Thursday, she said she had drafted a contract to make it “easy” for Bloomberg to release previous signees, after she (and former Vice President Joe Biden) had asked Bloomberg to publicly waive the NDAs during the Democratic debate.
Both Warren and Biden responded to Bloomberg’s Friday announcement by arguing that it did not go far enough. The Associated Press on Friday cited reporting that Bloomberg LP has allegedly “faced nearly 40 lawsuits involving 65 plaintiffs between 1996 and 2016, though it’s unclear how many relate to sexual harassment or discrimination.”
“That’s just not good enough,” Warren said of Bloomberg’s about-face during a campaign stop on Friday afternoon in Nevada. “Michael Bloomberg needs to do a blanket release, so that all women who have been muzzled by the non-disclosure agreements can step up and tell their side of the story,” she told reporters.
Biden’s campaign echoed her sentiment later on Friday, demanding Bloomberg release all current and former Bloomberg LP employees from NDAs, not just people who had signed NDAs to settle suits. “Today’s release essentially tells the public nothing — we don’t know how many women signed these NDAs, what percentage of NDAs this represents, or what categories of signed NDAs exist that are excluded,” a statement from a deputy campaign manager read.
When pressed about the NDAs during the debate, Bloomberg had responded that “none of them accuse me of doing anything, other than maybe they didn’t like the joke I told.” He then added that he would not waive them because they are “agreements between two parties that wanted to keep it quiet.” “That’s up to them,” he continued. “They signed those agreements and we’ll live with it.”
On Friday afternoon he changed his position. “I recognize that NDAs, particularly when they are used in the context of sexual harassment and sexual assault, promote a culture of silence in the workplace and contribute to a culture of women not feeling safe or supported,” he continued in his statement.
He also announced that Bloomberg LP and his presidential campaign won’t offer confidentiality agreements to resolve claims of sexual harassment or misconduct in the future. This comes after The Nation reported earlier this week that Bloomberg campaign staffers were being asked to sign NDAs that could prevent them from reporting workplace abuse.
But is releasing someone from an NDA as simple as that? TIME spoke with legal experts.
As CEO, Bloomberg has the authority to release people
In New York state — where Bloomberg LP is headquartered — NDAs can be waived orally, meaning that Bloomberg could publicly announce he’s releasing people from their NDAs, and the people who had signed their complaint would immediately be free to speak. However, that’s not necessarily what happened with Bloomberg’s Friday announcement. The former mayor said the women should first contact Bloomberg LP. It’s possible, therefore, that these NDAs include a provision requiring a written waiver.
Because he’s CEO of his company, Bloomberg also has the authority to break any NDAs signed with Bloomberg LP — not just with himself as an individual, Elizabeth Tippett, a law professor at the University of Oregon, explains.
However, Tippett says that Bloomberg’s announcement that the women should contact the company — and not Bloomberg himself — suggests to her that they’re hoping to create some distance between the billionaire and the company he runs.
Could Warren’s contract have worked?
In a word, yes. University of Pennsylvania law and psychology professor Tess Wilkinson-Ryan tells TIME that if Bloomberg signed the contract, he would be waiving his right to sue. This means that if a woman spoke out and Bloomberg tried to sue her for breach of the NDA, a court would turn him away.
Warren might have proposed the contract to avoid the risk of Bloomberg’s NDAs requiring written waivers. But Tippett adds that some New York courts have recognized oral waivers even if the contract required written ones; in these instances, the court just asked for extra proof that the oral waiver actually happened.
Wilkinson-Ryan adds that women might still feel nervous about speaking out even after seeing Bloomberg say he would waive their NDAs. If they see a written legal document, she believes they might be more comfortable coming forward.
Tippett also tells TIME in an email that Warren’s proposed contract is “pretty broad” and appears to “cover not just settlement agreements involving litigants, but non-disclosure agreements that employees sign in as part of their jobs.” (This broad sweep is exactly what Biden asked for later on Friday.)
Could people speak out even if Bloomberg didn’t waive the NDAs?
It depends on how broad Bloomberg’s NDAs actually are. Some contracts include non-disparagement clauses, meaning parties can’t disparage each other, Tippett explains. Others contract only ban people from speaking about how much money they’ve settled for. In those cases, women can speak about their experiences without violating the contract.
Assuming these NDAs included non-disparagement clauses, if Bloomberg refused to waive them and a woman (or women) spoke out anyway, he could sue them for breach of contract. Civil rights attorney Debra Katz says that courts would likely rule in his favor unless they saw evidence that either party was coerced into signing the contract.
But she adds that, while the law would have been on Bloomberg’s side, politics wouldn’t have been. Asking employees to sign NDAs after settling harassment claims has become highly controversial since they become more common knowledge due to the #MeToo movement, and critics argue the practice muzzles women and leaves power with the abusers. New Jersey and California have already banned these types of “hush contracts” in sexual-harassment cases.
“Yes, [these women] did enter into contracts, but they entered into contracts at different periods, historically, when victims weren’t given the same kind of credibility,” Katz tells TIME. She adds that Bloomberg’s initial dismissal of Warren’s request showed “a complete lack of understanding about this moment, which really requires a greater level of candor and transparency.”
Bloomberg and his campaign now appear keenly aware of this, given their announcement that he will no longer allow confidentially agreements to resolve harassment or misconduct claims.
Tippett tells TIME that she’d be shocked if Bloomberg LP actually took legal action to enforce the NDAs because it “opens a can of worms” for the company. Asking a court to enforce an NDA surrounding the allegations of harassment would, she says, serve as a reminder that the allegations happened in the first place.
The Bloomberg campaign did not immediately respond to TIME for comment.
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