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...

A non-disparagement clause in a commercial contract discourages one party from saying bad things (whether or not true) about the other party. The clause is  common in litigation settlement agreements and employee termination agreements. In the latter, the purpose of a non-disparagement clause is to prevent the former employee from criticizing their former employer after the discontinuation of employment. In a litigation settlement agreement, this clause is included so that new customers (or vendors) won't be discouraged from doing business with the settling parties.  As a general rule, a non-disparagement provision in a non-consumer contract is valid and enforceable. But damages resulting from their breach may be difficult to prove, because what is your reputation worth before compared to after the provision has been breached? You would likely be forced to hire expert witnesses to testify about reputational damage substantiated by customer or social media surveys; in...