Harvey Weinstein Scandal Spurs Lawmakers To Go After Nondisclosure Agreements

Harvey Weinstein Scandal Spurs Lawmakers To Go After Nondisclosure Agreements

By: Claudia Koerner
BuzzFeed News Reporter
October 12, 2017

A pair of New York lawmakers are aiming to end the sort of confidentiality agreements that shield workplace sexual harassment and that have been cited in the ongoing Harvey Weinstein scandal.

The new language to an existing bill, to be introduced on Friday, would void any contract provision where an employer can force an employee to keep quiet about sexual harassment and discrimination claims. It would include claims that are settled in arbitration, where nondisclosure agreements routinely keep the details of allegations secret.

State Sen. Brad Hoylman, who is cosponsoring the bill with Assemblywoman Nily Rozic, said the legislation was rewritten after sexual assault and harassment allegations against Harvey Weinstein were published by the New York Times and the New Yorker. Several people contacted in those stories said they were prevented from speaking out because of nondisclosure agreements.

“As we’ve seen in the Weinstein matter, these types of settlement agreements perpetuate harassment of other people for decades,” said Hoylman, a Manhattan Democrat who counts Weinstein among his constituents.

Hoylman added that because of the secrecy surrounding confidentiality agreements, no one knows how extensive they are.

“Employees who are in a position of very little agency, power, are being forced, it would appear, to sign away their rights,” he said.

The bill amends the state’s labor law and only applies to formal employment contracts or agreements. The allegations against Weinstein run that gamut, with misconduct or retaliation reportedly experienced by assistants and other employees. Other claims have come from young actors who Weinstein allegedly asked to private meetings to discuss potential roles — outside any employment that could be regulated by state law.

But Rozic, a Democrat, said the recent attention to sexual misconduct allegations against famous figures like Weinstein has made people more open to talking about sexual misconduct.

“There are men in every industry in positions of power who use that against ambitious women who are starting out in their careers,” she said.

And though the issue is a longstanding and multifaceted one, she said the new legislation aims to chip away at the workplace norms that leave employees at a disadvantage.

“It focuses on not just the physical power, but the economic power someone can hold over you,” she said.

The legislation is the first in the country to go so far and would completely change the landscape of sexual harassment settlements, said Ann Fromholz, who practices employment law and does workplace investigations for the Fromholz Firm. California last year similarly banned confidentiality agreements in cases of workplace harassment, but only where a potential felony was involved.

Currently, settlements allow employers to take back payouts in part or in full from employees who break confidentiality agreements.

The new bill “is ensuring the light can still be shone on bad behavior, even if the company pays money to avoid the risk of litigation,” she said.

The dollar amount of settlements may still remain secret under the bill, but employees would be allowed to talk about their experiences.

“In the end that benefits companies, because if people talking and complaining stops sexual harassment — and makes the workplace safer — that’s better for everyone,” Fromholz said.

The legal fallout from the mushrooming Weinstein sex scandal could be big

The legal fallout from the mushrooming Weinstein sex scandal could be big

By: Daniel Miller, Ryan Faughnder & David Ng
Los Angeles Times
October 10, 2017

The mounting sexual assault and harassment claims against disgraced Hollywood mogul Harvey Weinstein could have severe legal consequences for the executive and his already struggling namesake company.

Although it may be difficult to build a criminal case against Weinstein, his alleged mistreatment of women could expose him and his film and TV company to costly civil lawsuits, according to attorneys and professors specializing in sexual misconduct.

“The potential liability is significant,” said Ann Fromholz, a Pasadena attorney who has handled sexual harassment cases.

Under California law, Weinstein Co. could be liable for Weinstein’s alleged actions, according to Doug Silverstein, an attorney specializing in employment and discrimination. “They are on the hook just like him,” he said.

Whether an alleged victim could bring a lawsuit against Weinstein, 65, would hinge, in part, on the applicable statute of limitations. In California, the statute of limitations for civil sexual assault is two years and in New York it is three years; Weinstein has been accused of misconduct in both states.

“I expect a flood of lawsuits to be headed his way if they are timely and he hasn’t already bought off the victims,” said Laurie Levenson, a professor at Loyola Law School.

Weinstein Co., based in New York, fired the executive over the weekend after an investigation by the New York Times said he’d reached at least eight legal settlements, dating to 1990, with women over alleged harassment. On Tuesday, the New Yorker published a story that included, among other allegations, claims that Weinstein had raped three women in the last 20 years. Among them was actress Asia Argento, who appeared in “B. Monkey,” a 1999 drama distributed by Miramax, then headed by Weinstein.

Weinstein, who previously apologized for some of his behavior, denied the rape claims. “Any allegations of non-consensual sex are unequivocally denied by Mr. Weinstein,” a representative said in a statement, adding that “Weinstein believes that all of these relationships were consensual.”

In a statement Tuesday night, Weinstein Co.’s board of directors said they were “shocked and dismayed” by the latest allegations and that they are “committed to assisting with our full energies in all criminal or other investigations of these alleged acts.”

Legal experts said that Weinstein could face criminal liability over his alleged behavior. In New York, there is no statute of limitations for criminal sexual assault — the result of a 2005 law that did away with a prior timing restriction. Any alleged act that occurred after that year can be prosecuted in the state.

In California, a previous 10-year criminal statute of limitations for rape and other sexual misconduct was removed last year after Gov. Jerry Brown signed legislation amending the penal code. The new law went into effect Jan. 1 and affects certain sex crimes that have occurred in 2017 or will transpire in the future. It also applies to alleged offenses for which the prior statute of limitations had not expired by Jan. 1.

But bringing a criminal case against Weinstein, known for producing Oscar-winning films such as “Shakespeare in Love,” would be more difficult than a civil action, experts said, in part because alleged victims may have signed affidavits repudiating their allegations. In one 2015 matter, fashion model Ambra Battilana Gutierrez told police in New York that Weinstein had groped her, but the Manhattan district attorney decided against charging the executive. Gutierrez reached a settlement with Weinstein, according to reports.

“If we could have prosecuted Harvey Weinstein … we would have,” a spokesperson for Manhattan Dist. Atty. Cyrus R. Vance Jr. said in a statement. “Mr. Weinstein’s pattern of mistreating women, as recounted in recent reports, is disgraceful and shocks the conscience.”

Levenson cited Bill Cosby — one of several entertainment and media personalities recently accused of sexual assault — to illustrate the difficulty in prosecuting high-profile figures for alleged acts committed years ago. Dozens of women have accused Cosby of rape, sexual battery and other misconduct, and many of the entertainer’s alleged victims have sued him. However, only one criminal case over alleged sexual assault has been brought against Cosby, and the Pennsylvania trial, which focused on an alleged 2004 incident, ended in a hung jury in June. Cosby has denied wrongdoing.

Levenson, a former assistant U.S. attorney, said a criminal case being brought against Weinstein would be “possible, but still not likely.”

In recent days, Weinstein Co., which was started in 2005 and produced hits including “The King’s Speech” and “Django Unchained,” has been working to distance itself from its co-founder. Still, questions remain over how much others at the company knew about Weinstein’s alleged behavior.

The New Yorker article described a “culture of complicity” at the Weinstein Co. Some current and former employees told the magazine that they were enlisted to help trick women into being alone with Weinstein in supposedly professional meetings that were pretexts for his sexual advances.

In California and New York, companies can be found liable if a manager has engaged in harassment, even if others at the firm weren’t aware of the inappropriate behavior, Fromholz said. Weinstein was co-chairman of his company and, with his brother Bob, owns 42%.

“If a manager of a company engages in harassment conduct, the company is liable even if they didn’t know about it,” Fromholz said.

Potential damages in such cases could include loss of wages, for example, if the victim is unable to work or find work because of the harassment. Companies can also be hit with demands for damages for emotional distress, among other claims.

Weinstein could also face lawsuits from the company he led until Sunday. Other shareholders of Weinstein Co. could sue him for breach of contract if he broke the company’s covenants or policies, according to one legal expert. However, if those shareholders knew about his alleged behavior and failed to act or were complicit, they would be unable to reap the prospective gains of a lawsuit.

Can the Weinstein Co. survive without Harvey Weinstein?
A flood of high-profile Hollywood and political players spoke out against Weinstein on Tuesday, among them Hillary Clinton, whose political career was long supported by the executive. Also on Tuesday, more women came forward to allege that they too had been harassed by Weinstein, including A-list actresses Gwyneth Paltrow and Angelina Jolie.

And at a news conference Tuesday, former actress and screenwriter Louisette Geiss accused Weinstein of harassing her in a hotel room during the Sundance Film Festival in Park City, Utah, in 2008. The statute of limitations related to the alleged incident has expired, but Geiss’ attorney, Gloria Allred, urged Weinstein to waive the civil statute of limitations.

“Why would he do it? Because I think he wants to work in this town again,” Allred said.

But efforts are rapidly underway to erase Weinstein’s connections to projects, people and institutions with which he was affiliated. Weinstein Co. has given television networks permission to remove his name from their shows’ credits. Also, several U.S. senators are giving away political donations that the executive made to them.

On Tuesday afternoon, USC said it would decline Weinstein’s pledge to fund a $5-million endowment for female filmmakers. An hour or so later, Weinstein’s wife of a decade, Marchesa designer Georgina Chapman, announced that she is leaving him.

Fox’s Suddenly Swift Action on Harassment Claims: “The Pendulum Has Swung the Other Way”

Fox’s Suddenly Swift Action on Harassment Claims: “The Pendulum Has Swung the Other Way”

By: Marisa Guthrie & Ashley Cullins
The Hollywood Reporter

Ousted Fox Sports exec Jamie Horowitz preps a lawsuit and Fox Business anchor Charles Payne vows to fight allegations of sex bias as the Murdochs adopt a “zero tolerance” policy in the wake of the Roger Ailes and Bill O’Reilly scandals and payouts.

When Fox Sports executive Jamie Horowitz was summoned to meet with a workplace investigator Friday, June 30, it was not necessarily cause for alarm. After all, he’d been given no indication anything was amiss with his job performance. Even when Horowitz, 40, was asked general questions about his interactions with colleagues — including if he’d ever gone for a drink or dinner with a female subordinate — he was not confronted with any specific allegation against him.

But after the meeting, when Fox asked him to surrender his company ID, leave the West Los Angeles lot and return at 8 a.m. on Monday of that holiday weekend, he called Patty Glaser, the fiery L.A. litigator, who advised him to do as commanded. When Horowitz arrived, he was told he was being terminated for cause and that the Los Angeles Times was about to post a story reporting his firing. Nobody explained why exactly. But Daniel Petrocelli, the top litigator who was hired to represent Fox Sports in the matter, tells The Hollywood Reporter: “We are confident that Mr. Horowitz knows why his employment was terminated, and we presume that he would prefer that the matter not publicly be discussed.”

Horowitz’s dismissal after two high-profile years as Fox Sports national networks president surprised many in the industry for the swift and public way it went down. In the aftermath of the sexual harassment scandals engulfing fellow 21st Century Fox outlet Fox News and the ouster of late founder Roger Ailes and anchor Bill O’Reilly amid at least $85 million in payments to women, CEO James Murdoch and Fox executive Peter Rice, who oversees Fox Sports, acted quickly and brazenly. Three days after Horowitz’s firing, Charles Payne, a Fox Business Network anchor, was suspended pending an investigation into an extramarital affair with a woman who appeard on the network. Payne’s lawyer says he “categorically denies” any harassment.

Payne admitted a romantic relationship with a Fox News contributor, who reported him because she said she was “blackballed.”

Glaser also has denied Horowitz harassed anyone, and she calls his treatment by Fox “appalling.” One source not involved in the ouster, while not discounting the seriousness of the allegations, describes it as “vicious.”

Sources within Fox Sports say the Horowitz firing came after more than one allegation of misconduct with a female employee and that the specifics of the interactions made immediate termination a necessity. Fox Sports president Eric Shanks told employees in a July 3 memo that the company’s “values are non-negotiable.”

But Glaser is said to be preparing a lawsuit and conducting her own investigation with an eye on arguing that Fox, hypersensitive due to the Fox News scandal and nervous about regulatory scrutiny of its planned acquisition of Sky Television in the U.K., acted impulsively and without all the facts.

Glaser’s first move is to attempt to gain access to any investigative report on Horowitz so he can see for the first time what specifically has been alleged and by whom. Sports Illustrated on July 3 quoted an unnamed female production staffer at Fox Sports who said that Horowitz, married with three young sons, tried to kiss her. “I have been working in sports for a long time, and no one has ever been that bold with me,” she told the magazine. Both Fox and Horowitz declined to comment.

According to sources, Horowitz also is being accused of an inappropriate incident with another woman, who came forward during the investigation, which took less than a month and was handled by an outside investigator, not a law firm (as is the case in the New York-based probe at Fox News). Fox Sports hired Petrocelli and his firm, but only after Glaser began representing Horowitz. (Petrocelli calls Glaser’s view of the situation “ill-informed and misguided.”)

Anticipating a lawsuit, a Fox Sports in-house attorney, Raquel Braun, has sent a “litigation hold” email to everyone potentially involved in the case, including Fox executives and talent and their representatives. Such requests to preserve documents are standard, but the broad nature of this request further suggests that Fox is girding for an intense legal battle. The company is still in the throes of litigation stemming from the investigations at Fox News.

Horowitz’s ouster and Payne’s suspension are a sign that Fox and the Murdochs are taking a zero tolerance approach when it comes to inappropriate workplace behavior. Also leaked to the media in the Horowitz matter was the fact that no settlements have been offered. (A federal probe into whether Fox News improperly structured settlement payments to minimize impact on the company’s financial disclosures is ongoing.) Multiple sources point to the company’s $15 billion bid for full control of Sky as a motivating factor to clean house.

Horowitz landed at Fox Sports in 2015 after a very short stint at NBC News, where he rankled employees of NBC’s Today show after taking what many have characterized as a scorched earth approach to turning around a ratings slide. Insiders note that Shanks was aware of Horowitz’s hard-charging style but needed an executive with the fortitude and vision to forge an identity for the unit’s cable networks.

And Horowitz, who rose through the ranks at ESPN, turned over much of the original lineups at Fox Sports 1 and Fox Sports 2, which not surprisingly alienated many staffers. Days before his ouster, he laid off nearly all the writers on Fox Sports’ websites to focus on video.

Compared to the salacious allegations against O’Reilly and Ailes, the reported accusations against Horowitz may seem relatively innocuous — but any outside-the-office conduct with a subordinate still might violate corporate policy. It’s also likely that Horowitz’s place high on the Fox food chain subjected him to higher standards — especially given recent allegations that the company’s leadership ignored systemic misogyny and harassment.

“From what we saw at Fox News, it seems they weren’t swift in taking corrective action,” says Ann Fromholz, who specializes in corporate harassment investigations. “It seems that the pendulum has now swung the other way. Fox may have reached a point that anything they determine violates their policy would lead to significant punishment, if not termination.”

While Horowitz is absorbing the full force of the zeitgeist, Fox’s swift and severe reaction is likely to trigger aftershocks among its competitors.

“I expect other companies will tread more carefully,” says Fromholz. “I know that there are plaintiffs’ employment lawyers who are using this situation at Fox News as a barometer when they write a demand letter to a company saying, ‘You have a Fox News problem.'”

More big firms hit with sex discrimination suits

More big firms hit with sex discrimination suits

By:  Nicolas Sonnenburg
Los Angeles Daily Journal
June 30, 2017

Steptoe & Johnson LLP has become the latest of several national law firms to be hit with a gender discrimination lawsuit from a former employee alleging pay disparity between male and female partners and a lack of female partnership promotions.

The majority of these recent cases have been filed on the East Coast. The federal claim facing Steptoe in Los Angeles is only the second to reach California. The suit might shed light on the state’s potential as a venue for such actions. The plaintiff filed her complaint under California’s Fair Pay Act, which became law in 2016.

Last Thursday, plaintiff Ji-In Houck filed a proposed class action against Steptoe, alleging the pay she received as an associate was not commensurate to that of her male counterparts. Houck v. Steptoe & Johnson LLP, 17-CV04595 (C.D. Cal., filed June 22, 2017).

Houck, who started at Steptoe’s Century City office in 2013, was hired as a contract attorney with an $85,000 salary. Her complaint alleged that, as a contract lawyer, she did the same work as male associates who were admitted to the bar the same year she was, 2011. According to the complaint, these male attorneys were paid $165,000.

A year later, Houck was made an associate and her salary was raised to $130,000. She alleged, however, that work she did as a contract attorney was equivalent to that of other associates in the firm and that other 2011 bar-passers at her firm were making $175,000 when she made associate status.

The complaint also alleged a lack of response by the firm to Houck’s inquiries into the pay disparity and a failure to involve her in women’s initiative programs in the firm, despite her request to participate.

Steptoe has denied the allegations, describing itself as a “strong supporter of women lawyers and professionals.”

“The allegations of associate pay discrimination in this lawsuit by a former junior associate who was hired as a contract attorney and stayed with the firm for less than three years are completely without merit, and we will vigorously defend ourselves against such baseless claims,” the firm said in a statement.

Earlier this month, the firm was named in Yale Law Women’s 2017 “Top Ten Family Friendly Firms” survey in its gender equity category for promoting a partner class in 2016 that was at least half female.

Steptoe joins a growing list of prestigious firms facing similar charges. Chadbourne & Parke LLP, which will soon merge with Norton Rose Fulbright, is facing a gender bias claim from three former female partners in the Southern District of New York. Proskauer Rose LLP was hit with a $50 million lawsuit in the District of Columbia from an anonymous female partner.

A case alleging pay discrimination at Sedgwick LLP, filed by a female partner in Chicago, made its way to California where Sedgwick is based, but it was settled for an undisclosed amount after being moved to arbitration.

The claims all share allegations of gender-based pay disparity and a lack of female partnership promotions. Houck is represented by Lori Andrus of Andrus Anderson LLP in San Francisco, a civil attorney who lists equal pay among her areas of practice. Houck’s case, if it goes to trial, would be the first to test the viability of such a lawsuit under California’s Fair Pay Act.

Under the new California statute, Houck will not need to establish intent to discriminate in order to be successful on her claim. Under the law, an employer many not pay employees of opposite sexes different wages for “substantially similar work,” except when the employer can establish appropriately different factors between the employees like seniority or experience.

“I imagine that in this case the question will come down to what constitutes ‘substantially similar work,'” commented Ann Fromholz, a Pasadena-based labor attorney. “If other women in her peer group were making less than men, that would seem to support her claim.”

Who exactly the court considers to be Houck’s peers likely will determine how the case unfolds. Throughout her complaint, Houck compares her pay to those of “male counterparts.” The complaint does not specify whether those male associates, who also passed the bar in 2011, were hired by Steptoe at the same time as Houck or earlier.

In a section of the complaint alleging that the firm underpaid other female attorneys, Houck cites two anonymous female associates – one of whom was originally hired as a contract attorney – that made considerably less than what she describes as “male counterparts.”

“The California Equal Pay Act doesn’t require proof of intent,” emphasized labor and employment lawyer David A. Lowe of Rudy Exelrod Zieff & Lowe LLP, who is not involved in the case. “What the associate attorney needs to establish is a pattern of paying female associates lower than their male counterparts for similar work. The key is paying a comparable rate of pay; that doesn’t require intent.”

Lisa Von Eschen, a Los Angeles partner at Lamb & Kawakami LLP who is also not involved in the case, said the salary numbers presented in the complaint removed much of the subjectivity defense available in similar gender bias suits regarding the value of things like promotions and office culture. She also said the case isn’t a home run.

“You can’t just look at the numbers without looking at more than the associate’s background. The woman here had been hired as a contract attorney. Some people say that that doesn’t make a difference, but it could make a world of difference. She could have been brought on to fill a small role originally, which would have a bearing on salary decisions,” Von Eschen said.

As to why the influx of suits now, lawyers say that changing perceptions about gender in the workplace are likely to be a motivating factor.

“It used to be that the received wisdom was that it was professional suicide to sue for this sort of issue,” said Deborah L. Rhode, a Stanford Law School professor. “I think what you’re seeing is an increased willingness on the part of women lawyers who have been subject to gender bias to file lawsuits to change it. Gender bias is nothing new. It’s been there from the outset.”

Rhode said women across the job market have increasingly found luck in challenging top corporate leadership, coming out with substantial settlements and moving onto successful careers afterward – in particular, noting major leadership changes at Uber and Fox News following allegations of sexual discrimination and harassment.

Houck herself left Steptoe in March 2016 and has been working at the Stalwart Law Group since.