High-profile dilemma: fight or settle?

According to conventional wisdom, as a result of their fame (and presumed fortune), celebrities receive preferential treatment in court, as well as in the court of "public opinion." In reality, despite recent anomalies that led TMZ's Harvey Levin to coin the phrase "celebrity justice," nothing could be further from the truth. Targeting celebrities or high-profile individuals (or corporations) is nothing new in the governmental arena. Justice Department lawyers sometimes initiate federal investigations based upon the newsworthiness of a case, but so long as the prosecutor follows DOJ's mission statement of "doing justice" prosecuting high-profile criminal cases can have the salutary effect of deterring would-be criminals. See Berger v. United States, 295 U.S. 78 (1935) (The United States attorney's duty is not necessarily to "win a case but [to ensure] that justice shall be done.") In fact, the United States Attorneys' Manual (USAM) identifies the prominence of a putative defendant as a factor potentially militating in favor of seeking charges. See generally, USAM, 9-27.000, "Principles of Federal Prosecution."

The targeting of celebrities in the private, civil arena, is also nothing new, but it often occurs for different, less-laudatory reasons. Despite their supposed "power," celebrities can be easy targets and they are sometimes seen by prospective plaintiffs as walking ATM-machines, who might be more tempted than their civilian counterparts to settle cases, in order to move on with their lives and careers. Their hope might be to try to protect their dignity, and the dignity of others, rather than engaging in a protracted and potentially degrading process.

The Dilemma Faced by Celebrity Defendants

Now more than ever, celebrity defendants - and their lawyers - should think twice about settling at all and, at the very least, when they do settle, they must pay closer attention than their counterparts to the details of their settlement agreements before signing them.

In the typical "confidential" civil settlement agreement, the parties will include language (generally under a discrete but potentially-misleading "Confidentiality Clause" heading) that "The case has been amicably settled to the parties' mutual satisfaction and they cannot comment further" (or words to that effect). The typical defendant may think that the case is over and she or he can move on, without worrying about further publicity, and often with good reason. After all, there is no admission of liability and she or he is protected by an ironclad confidentiality clause, right? Wrong.

Particularly in today's era of social media, "fake news" and clickbait journalism, celebrity defendants who enter into settlement agreements with such standard, boilerplate confidentiality clauses do so at their peril. The predicament faced by actor Casey Affleck, the star of Kenneth Lonergan's highly acclaimed, award-winning film "Manchester By The Sea" provides a timely case-in-point - and serves as a cautionary tale for the unwary. Affleck's performance in "Manchester" has been praised as "masterful," "magnificent," "breathtaking" and "brilliant." He has been feted at film festivals around the world and reaped more than 30 awards for his performance including the highly coveted Golden Globe. He has also been widely perceived as a front-runner to win an Academy Award. (Note that this author represented the film's four-time Academy Award-nominated writer-director in litigation over Lonergan's last film, "Margaret," and that his wife is on Affleck's PR team.)

Affleck is now being pilloried on the internet by various attackers who for their own reasons have dredged up the 7-year-old settlement of two related 2010 civil "sexual harassment" lawsuits arising from his alleged conduct on the set of his film "I'm Still Here," which Affleck directed. Based solely upon the unsubstantiated allegations contained in those long-ago settled cases, the attacks have unequivocally and with utter certainty labeled Affleck a "sexual harasser," a "sexual abuser," and even a "criminal."

These attacks have occurred despite the parties' amicable settlement (to the "mutual satisfaction of the parties") and their settlement agreement's confidentiality clause - or perhaps because of them. Strictly as a matter of law, the attacks are erroneous for several fairly obvious reasons. First, putting aside that the better part of a decade has now passed, they ignore that prior to settlement, Affleck expressly rejected the accusations as "fabricated" and an "extortion tactic."

Second, they ignore very extreme and axiomatic differences between civil and criminal cases. Criminal cases are brought only by the government (private individuals have no such authority) generally after a grand jury returns an indictment after analyzing evidence supporting the charges and finding "probable cause" to indict. In contrast, there are no such speed bumps or "protective bulwarks" (see United States v. Dionisio, describing the grand jury process) in the civil system, where private litigants may file lawsuits (not "charges," which are reserved for criminal cases) based upon alleged wrongdoing, and such suits do not require any independent prosecutorial or grand jury analyses of evidence.

Third, the attacks recklessly conflate allegations of "harassment" (which are civil torts) with "abuse" or "rape" (which are crimes). If proven, all of the above are, of course, obviously unacceptable and reprehensible, no matter what. But as Harvard Law School professor and noted expert in sexual harassment law Jeannie Suk Gersen recently told the New York Times in an article discussing Affleck's predicament, "both morally and legally there are distinctions - degrees of behavior."

Fourth, the attacks assume (or proclaim certainty as to) the veracity of the allegations, despite settlement and the complete lack of any actual proof. As Professor Suk further told the Times, "As a lawyer, I don't take a settlement to mean much of anything. Sometimes it means [liability]. But sometimes people who are innocent - especially celebrities - settle cases after doing a cost-benefit analysis: How much do I want to pay for this to be over?"

Columbia Law School Professor Daniel C. Richman, a prominent criminal law expert and former federal prosecutor, similarly notes that "Equating a confidential civil settlement that lacks an admission of liability and is based solely upon unproven allegations brought by a private civil plaintiff with a criminal case in a which a prosecutor found sufficient probable cause to go forward with charges makes no sense at all to anyone familiar with legal processes." Indeed, in addition to the grand jury hurdle inherent in criminal cases, as a matter of prosecutorial discretion, federal prosecutors must undertake painstaking analyses regarding whether to initiate or decline prosecution. At the federal level (state prosecutors must satisfy similar threshold tests) prosecutors may not even commence cases unless they believe there is sufficient evidence to obtain a verdict of guilt, beyond a reasonable doubt. See USAM, "Principles of Federal Prosecution," listing eight factors that must be assessed in connection with a federal prosecutor's charging decisions. Thus, in contrast to a civil case, anytime a criminal case is brought, it must be based upon at least a modicum of independently assessed evidence, consistent with 18th Century English jurist William Blackstone's famous admonition that it is "better that ten guilty persons escape, than one innocent person suffer."

In short, as an overriding matter, high-profile defendants and their counsel who settle face a dilemma: If they try to relitigate their original defenses publicly in an effort to counter post-settlement attacks, the client will likely be sued for breach of contract (breach of the settlement agreement's confidentiality clause); if they remain silent, the client may continue to be attacked maliciously, often in unchecked, unedited social media accounts (whose stories may then be picked up and baldly repeated by mainstream media). In today's internet era in which the 24-hour news cycle has been replaced with a 24-minute cycle, this dilemma is particularly acute.

Crafting More-Detailed Settlement Agreements

Most cases will not present the nuanced or high-stakes issues discussed herein. Nevertheless, attorneys negotiating and drafting settlement agreements should take heed, especially if they represent high-profile or celebrity clients, whose settlement agreements may subsequently be used against them, leaving the client defenseless and unable to respond even to malicious attacks without the risk of being sued again, this time for breach of the agreement's confidentiality clause.

Counsel should demonstrate foresight and discuss with their clients that if they are in the public eye - or if they are subsequently thrust into the public eye (as Affleck has been since his film's acclaim) - "standard" confidentiality clauses may not sufficiently protect them. Accordingly, short of going to court and defending the client at trial, where the client denies the allegations, cautious attorneys will seek to afford their clients even greater protection by crafting more detailed settlement agreements that (i) remove the stigma of a complaint's sensational allegations and/or (ii) contain explicit language regarding the client's rejection of such allegations.