08:17, January 09 286 0 abajournal.com

2018-01-09 08:17:04
If Trump sues Bannon for violating a nondisclosure agreement, what are his damages?

Charles Harder, a Trump attorney, sent a letter to Bannon last week, the Washington Post reported.

According to the Washington Post, Harder accused Bannon of disclosing confidential information to Wolff, author of Fire and Fury, and making “disparaging statements and in some cases outright defamatory statements” to the author about Trump, his family and his company.

However, some law professors think such a lawsuit would be unsuccessful.

Generally, nondisclosure agreements are enforceable unless they run against the public interest, which is an argument Bannon could make, University of Arizona law professor Jane Roberta Bambauer says.

Bambauer, whose research includes big data and privacy law, notes that the remedy would be problematic if such a lawsuit was pursued.

“It’s difficult for litigants to claim large damages when the nature of the award is that they expected to be less embarrassed (as opposed to NDA cases involving trade secrets and other financially valuable pieces of information that the protected party expected to exploit himself),” she wrote in an email to the ABA Journal.

If the president does file a lawsuit, it could be great for free speech, Noah Feldman, a Harvard Law School professor, writes at Bloomberg View.

“Faced with an attempt to suppress speech that is so plainly of public importance and interest, a judge would have little choice but to conclude that the First Amendment disallows enforcement of an NDA made with a presidential campaign,” Feldman writes. “The legal precedent created—and publicity it received—would be a blow to the bullying use of the courts to silence speech and a boon to free expression.”

However Stephen L. Carter, also writing for Bloomberg View, has a different perspective. Carter, a contracts professor at Yale Law School, argues that if Harder’s description of the agreement is correct, its nondisparagement clause could be enforceable.

“We can put aside nondisparagement clauses buried in the boilerplate of consumer contracts, which companies sometimes try to use to prevent those who buy their products from posting negative reviews. Most courts have understandably held such clauses unenforceable,” Carter wrote. “But when non-disparagement clauses are included in employment contracts or separation agreements, they are enforced more or less routinely. The reason isn’t that judges don’t understand that the clauses might be abused. The reason is that the employee who agreed to the deal is bound by his own free choice.”