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Trump Campaign’s Illegal Non-Disclosure Agreements

Overview

Protect Democracy, Bowles & Johnson PLLC, and Ballard Spahr LLP represent Jessica Denson, a former 2016 Trump campaign staffer, in a class-action lawsuit against the Trump campaign over its use of sweeping and indefinite nondisclosure and non-disparagement clauses (the “NDAs”) to bar speech about the former president and his family members. The lawsuit seeks a declaratory judgment that the NDAs are invalid, and an injunction prohibiting their enforcement. On March 30, 2021, the court denied the Trump campaign’s motion to dismiss the case and issued a declaratory judgment that the Form NDA signed by Denson is invalid and unenforceable.

In 2016, the Trump campaign required its staffers to sign contracts prohibiting them from disparaging or demeaning former President Trump, any member of his family, or any of his and his family’s companies — forever. Those same contracts also prohibit staffers from ever disclosing any information that former President Trump unilaterally deems private, with no possible way to understand what that might mean.

The Trump campaign has routinely threatened and attempted to enforce its illegal NDAs to stop former campaign workers from engaging in speech related to matters of public concern, including their views on the former President’s time in office. The Trump campaign has also used the NDAs to retaliate against former workers who file harassment and discrimination claims, including against lead plaintiff Ms. Denson.

Our complaint explained that the Trump campaign’s NDAs violate state and federal constitutional protections for speech and the press, as well as New York contract law. The state and federal constitutional protections of speech and the press render NDAs unenforceable where, as here, the public interest in the prohibited speech outweighs anyone’s interest in forced silence. The NDAs are also unlawful under New York contract law because they are open-ended, unreasonable, unconscionable, and otherwise against public policy.

On March 30, 2021, the Court held that the NDA signed by Jessica Denson violates New York contract law. The Court explained that the Campaign’s NDA is unduly burdensome and insufficiently definite to constitute an enforceable agreement. In doing so, the Court noted that “[b]ecause the effect of these burdens is to chill the speech of Denson and other former Campaign workers about matters of public interest, the non-disclosure provision is harmful not only to them but also to the general public.” To ensure that that Court’s ruling applies to everyone who signed the Campaign’s NDAs, Plaintiffs now intend to seek class certification.

NDAs like those used by the Trump Campaign pose a profound and indefinite danger to the constitutionally protected rights of free speech and press of all Americans who are required to execute them, including former, current, and all future campaign employees, independent contractors, and volunteers. Cutting off public access to important information about candidates for office and public officials undermines “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”

Now that the Court has declared the Form NDA invalid as to Ms. Denson, we are working to ensure that the ruling applies to everyone who signed the Form NDA by having those individuals certified as a class.

As John Langford, Counsel for Protect Democracy, said upon the filing of this case,

“Campaigns cannot use NDAs to prevent Americans from ever criticizing public officials and candidates for office or from ever sharing with the public any information a candidate unilaterally deems private.”

Statements from Experts

Alan Garfield, Distinguished Professor of Law, Widener University Delaware Law School

“People with wealth and power have for far too long abused nondisclosure agreements to suppress information of vital public importance, including information about dangerously defective products, violent sexual predators, and, in the case of Trump’s wildly excessive NDAs, about a candidate for the nation’s highest office. It is time for courts to end this abuse.”

David Hoffman, Professor of Law, University of Pennsylvania School of Law

“The Trump Campaign’s extremely broad nondisclosure clauses are almost certainly unenforceable. It’s important for courts to make that point clear because fear of judicial sanction keeps people from speaking out.”

Heidi Kitrosser, Robins Kaplan Professor of Law, University of Minnesota Law School

“The 2016 Trump campaign demanded that employees and volunteers sign shockingly broad non-disclosure and non-disparagement agreements. The non-disparagement clause, for example, purports to bind such persons for life to speak no ill of former President Trump, his family members, or his businesses on pain of significant financial penalty. Such restrictions strike at the very heart of free speech and democratic government.”

Orly Lobel, Warren Distinguished Professor of Law, University of San Diego School of Law

“Employers are increasingly turning to overbroad and unlawful nondisclosure agreements to silence employees. The Trump Campaign’s nondisclosure agreements are particularly troubling, as they prevent the public from learning critical information about a candidate for public office.”

Rod Smolla, Dean and Professor of Law, Widener University Delaware Law School

“The time has come for this lawsuit.  First Amendment values and strong public policy interests stand against the indiscriminate enforcement of NDAs that are too often breathtaking in their scope and imposed to chill free expression and prevent exposure of wrongdoing.”

*Institutional affiliations for identification purposes only

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