The BUSKLAW Newsletter

  In my August 2020 newsletter, we discussed lessons from the New York Supreme Court's rejection of the Trump family NDA. Drafting lesson #1 is the need to specifically describe the information covered by the NDA rather than vague references.  Unfortunately for Trump, this lesson wasn't learned, as evidenced by a recent New York U.S. District Court decision in the case of  J essica Denson v Donald J. Trump for President, Inc.   Plaintiff Denson was employed as a national phone bank administrator for the 2016 Trump campaign. Before she was hired, she signed the standard Trump employment contract containing broad non-disclosure and non-disparagement provisions. Confidential Information was defined as: ...all information (whether or not embodied in any media) of a private, proprietary or confidential nature or that Mr. Trump insists remain private or confidential, including, but not limited to, any information with respect to the personal life, political affairs, and/o...

Consider the ubiquitous non-disclosure agreement ("NDA"): every business (and the White House) has one, and it's often employed for dubious ends. To  cover-up criminal activity.   Or to keep a lid on the President's past sexual shenanigans.  Most recently, President Trump's brother, Robert Trump, tried to use a family NDA from 2001 to stop the publication of Mary L. Trump's book entitled, Too Much and Never Enough. How My Family Created the World's Most Dangerous Man.   ( Mary Trump is Donald Trump's niece.) But the attempt to weaponize that NDA to ban Mary Trump's book failed. It was released on July 14 and is #1 on the bestseller list. So let's see where this NDA went wrong according to Judge Greenwald. And  p erhaps t he Court's opinion  (issued 7/13/2020) will help NDA drafters avoid some of the pitfalls that plagued the Trump family NDA. (This post doesn't discuss the constitutional issues decided by the Court.) First some context...

Do you need a contract for your business? What if you don't have a lawyer to call for that? Do you jump on the Web, go to the first DIY legal site that Google brings up, select a form that sounds right, download it for a fee, fill in the blanks, and hope for the best? Or do you find an old contract that your lawyer drafted for a similar deal and just change the parties' names, the date, the business information, and send it to the other side for signature?  Congratulations! You went the "instantly create a contract" route! Who needs a lawyer when you already have a contract form that seems OK? You saved your company money that can now be put into the office Christmas party fund. You aren't even a lawyer, but you're a smart cookie - C Suite material for certain. So don't be afraid to shop for an expensive toy - like that  Tesla Model X with the handy bio-weapon defense mode . But don't sign that check to Tesla just yet. Instead, make sure that y...