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November 2, 2011

2:02
P.M.

Is Herman Cain defaming his accusers?

About the hosts

About the host

Host: Denis Mitchell

Denis Mitchell

Denis C. Mitchell focuses his practice on representing people injured by the improper conduct of hospitals, healthcare providers, trucking companies, pharmaceutical companies and others. Mr. Mitchell has been chosen to speak, write and hold leadership positions in multiple organizations relating to his field of practice, including selection by peers for Best Lawyers in America in field of medical malpractice; Executive Committee and the Board of Governors of the District of Columbia Trial Lawyers Association; Chair of the D.C. Bar Tort Law Section (?tort law? primarily involves wrongdoing resulting in injury to persons); Amicus Committees for the Maryland Association for Justice; Adjunct professor in trial advocacy at the Georgetown University Law Center.

Mr. Mitchell?s recent results include multiple seven figure recoveries in medical malpractice, product liability, trucking, motor vehicle, and premises liability cases both before and during trial.

About the topic

Is Herman Cain defaming his sexual harassment accusers by discussing the cases publicly and dismissing the claims as unfounded? Should Cain ask for the accusers' confidentiality agreement to be lifted?

Chat with attorney Dennis Mitchell about where Cain's actions fall according to defamation law, as well as other legalities in the situation.

Ask your questions now!

Related: :
Lawyer for Cain accuser says she may not want to speak
Cain to media: 'Don't even bother' asking questions
Q.

Denis Mitchell :

This is Denis Mitchell.  I'm a lawyer in DC at Stein Mitchell & Muse.  Our firm has handled several important defamation cases over the years.    We represent people in medical malpractice, injury, civil rights, consumer protection, defamation and commercial cases. 

Q.

Settlement agreements

Is it common for a settlement agreement to silence the accuser, but allow the accused to continue talking at will if questions arise later? Seems one-sided to me.
A.
Denis Mitchell :

This depends on the type of case and how far into litigation the case has gone.  Once a complaint is filed in court (i.e., publicly available), there are significant ethical limitations on a lawyer's abiliy to "silence" by agreement the participants as to matters in the public record.  If litigation has not yet occurred,  an argument can be made that there's more flexibility. 

– November 02, 2011 2:05 PM
Q.

Is Herman Cain defaming his accusers?

If a "settlement" / "agreement" was indeed reached, does that preclude Cain from speaking about the issue at all? Whether he denies or ackonwledges? If he did that, said "no comment"-- it would be political suicide,but is that what such a legal agreement demands?
A.
Denis Mitchell :

This depends entirely on the wording of the agreement. 

– November 02, 2011 2:06 PM
Q.

Defamation

What's the exact definition of defamation? Can you be defamed even if the person talking about you doesn't name you by name?

A.
Denis Mitchell :

If the person defamed is a non-public figure, defamation is the negligent publication of an injury-causing and false statement about a person.  "Publication" means communicating the statement to any third party. 

– November 02, 2011 2:08 PM
Q.

Cain - confidentiality agreement

Has Cain already violated that by talking about the settlement? Has he by claiming his accusers were wrong?

A.
Denis Mitchell :

It depends on whether the language of the confidentiality agreement binds him or not.    If there's no term in the agreement requiring him to remain silent, he clearly did not violate it. 

– November 02, 2011 2:09 PM
Q.

Defamation question

How do you prove defamation?!

A.
Denis Mitchell :

In the case of a private person bring a claim against an alleged defamer:   you prove (1) that defendant made a statement, (2) that the statement was false, (3) that the statement is one which tends to injure a persons reputation or standing in his/her personal or business community, (4) that the defamatory statement was made negligently, and (5) that it in fact caused injury.   Usually this is done after a period of "discovery" whereby the lawyer representing the plaintiff has the opportunity to ask the defendants/alleged defamer questions under oath and to obtain documents relating to the event.   Discovery provides a primary source of evidence in such a case.

– November 02, 2011 2:14 PM
Q.

Agreement

What are the chances an organization would lift a confidentiality agreement?

A.
Denis Mitchell :

Very hard to say.   It depends again a lot on the wording if the agreement.  However, if a defamation action is filed, the confidentiality/non-disclosure agreement  would probably not provide any shield against discovery of the underlying facts.  In other words, these private NDAs may not prevent the vicitms of the alleged defamation from making allegations in complaint about how exactly they were harassed (assuming, of course, that they were).    In order to prove the defamation case, they would have to allege/prove that Mr. Cain's statements were false - i.e., that he did in fact sexually harass them. 

– November 02, 2011 2:22 PM
Q.

Sexual harassment

Do you know anything about sexual harassment settlements? It says the women took settlements - one at $35,000.  That seems low to me.  If it would have been something major, the settlement would have been much higher, right?

A.
Denis Mitchell :

Strong sexual harassment cases can produce settlements much larger than $35,000.   However, many people don't want to live through the ordeal that is litigation.  Defenses in such cases include allegations that the plaintiff is lying.  Who wants to be publicly called a liar and subject themselves to an assault on her character?  It is conceivable that a good case could be settled for  that sum simply because the victim does not want the disruption that such cases frequently  involve. 

– November 02, 2011 2:27 PM
Q.

Terminology

Since you're characterizing this as a private NDA, can you comment on the appropriateness of using the terms "allow" and "prevent" with respect to the exercise of what would appear to be the aggrieved party's right of speech? Wouldn't it be more accurate to say that she can't be "prevented" from speaking out, but would face certain civil legal consequences if she did? Words are important.
A.
Denis Mitchell :

When you talk about a persons "right of speech" you're referring to the party's federal and state constitutional rights.  Those rights prevent federal, state and local government authorities from abridging free speech.  They do not prevent private parties from freely entering into agreements to refrain from making certain statements. 

– November 02, 2011 2:33 PM
Q.

Obvious

I guess the obvious question is: Is Herman Cain defaming his accusors?

A.
Denis Mitchell :

Again, very hard to say without knowing more facts about the underlying events.  Were the harassment allegations against him well founded when they were made in 1990s?  If so, there's a decent argument to be made that Cain is making false statements about his accusers when he says that the accusations were false.  

– November 02, 2011 2:38 PM
Q.

Mr. Cain, it's time for some clarity

He should just go ahead and ask that the Nat'l Rest. Assoc. release the complainant(s) for any confidentiality agreements that may have been signed. Given how inarticulate and flip-floppy you've been, it couldn't hurt and it might even help.

A.
Denis Mitchell :

That's a question of political tactics.  I'll defer to others.

– November 02, 2011 2:42 PM
Q.

Herman Cain Defamation?

Would Mr Cain have had to sign the non-disclosure agreement as well? And would he be in violation of that agreement for publicly sharing particulars about the incident, such as what he said to the women & the amount of the payout?

A.
Denis Mitchell :

This depends entirely on the terms of the NDA. 

– November 02, 2011 2:43 PM
Q.

terminology redux

Allow me to sharpen my question, if I may. Irrespective of this being a private NDA, is she still not free to speak out at any time she wishes? In practical terms, how could she be prevented? Would not the only consequences be civil ones (i.e., monetary?)
A.
Denis Mitchell :

She could, theoretically, be required to pay damages or to repay the funds she received.  The terms of the agreement will dictate what recourse the non-breaching party has.

– November 02, 2011 2:44 PM
Q.

Denis Mitchell :

I'm signing off now.  I hope the information was helpful.  -Denis Mitchell

Q.

 

A.
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