Non-Disclosure Agreements (NDAs) are used by parties to ensure privacy and the confidentiality of sensitive information. Parties can use these agreements to maintain privacy. However, persons in positions of power, influence, or authority can effectively use NDAs as a tool to force outcomes in their favor.
The Speak Out Act, signed into law by President Biden in December 2022, is a clear indication that state and federal lawmakers want to address the disparities that arise when parties enter into NDAs. The Speak Out Act was championed at the federal level by New York Senator Kristen Gillibrand and others, upon findings that victims, injured by sexual misconduct were prohibited from coming forward publicly with allegations of sexual harassment – and even sexual assault – due to confidentiality required by NDAs.
At still under a year old, the application of the Speak Out Act is being tested by litigants in civil courts around the Country. Most notably, Erica Herman, the reported ex-girlfriend of pro-golfer Tiger Woods is allegedly seeking to void all or portions of a NDA the parties entered into during the course of their relationship. At the time of this writing, that case is still pending, and no court has issued a final ruling on the validity of that NDA.
Justice for Survivors and Witnesses of Abuse
In support of the Speak Out Act, Julie Roginsky, co-founder of Lift Our Voices, explained that “Too many workers have been driven from their jobs and their chosen careers because a culture of silence prevents them from holding predators and their enablers accountable. For too long, survivors and witnesses of abusive behavior have been threatened with legal repercussions if they tell anyone about what they know.”
This Speak Out Act marks a significant shift in efforts to prevent survivors from seeking help and holding abusive authority figures accountable in response to harassment and abuse – regardless of their NDA status. Survivors are encouraged to seek legal representation in these cases to ensure that their rights are protected.