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‘Invalid and Unenforceable’: Federal Judge Voids Non-Disclosure Agreement in Case of Former Trump Campaign Staffer


WASHINGTON, DC - AUGUST 04: U.S. President Donald Trump participates in the swearing in of General Charles Q. Brown as the incoming Chief of Staff of the Air Force, in the Oval Office of the White House, August 4, 2020 in Washington, DC. (Photo by Doug Mills-Pool/Getty Images)

A federal judge in New York on Tuesday ruled that the extremely broad non-disclosure and non-disparagement clauses contained in the employment agreement signed by a former Trump campaign staffer was “invalid and unenforceable,” reasoning that the sweepingly broad and ill-defined provisions made it nearly impossible to enforce.

In a 36-page ruling that circumvented broader First Amendment and other constitutional issues, George W. Bush-appointed U.S. District Judge Paul Gardephe said the agreement failed to meet the standards required under New York state law.

The case stems from a lawsuit filed by Jessica Denson, who was the director of Hispanic outreach for the campaign and previously alleged she was subjected to sexual discrimination and harassment during her employ.

According to Gardephe, the scope and duration of the non-disclosure clause—which forbids staffers from discussing the 2016 campaign or saying anything negative about Trump, his private businesses, his family, as well as his family’s businesses in perpetuity—was essentially unlimited and “much broader” than what was necessary to protect the campaign’s legitimate interests.

“The non-disclosure provision’s vague, overbroad, and undefined terms also render it unduly burdensome,” Gardephe wrote. “It is difficult if not impossible for Denson or another Campaign employee to know whether any speech might be covered by one of the broad categories of restricted information; whether that speech might relate to one of the several hundred potential subjects of the non-disclosure provision; or whether that speech may relate to a matter that President Trump will determine is confidential Because the effect of these burdens is to chill the speech of Denson and other former Campaign workers about matters of public interest, the non-disclosure provision is harmful not only to them but also to the general public.”

Similarly, Gardephe held that the “enormous scope” of the non-disparagement provision rendered it insufficiently definite and thus impossible for Denson to have provided the mutual assent required under the law.

Gardephe also rejected the Campaign’s suggestion that the court pare down or “blue pencil” the provisions and leave in place only the enforceable portions of the contract.

“’Blue penciling’ is not appropriate here,” he wrote. “As an initial matter, ‘blue penciling’ in this case would involve much more than a paring down of duration and geographical scope. In order to render the non-disclosure and non-disparagement provisions enforceable, the court would have to engage in a wholesale re-drafting of these provisions.”

Washington, D.C.-based federal employment attorney Bradley Moss agreed with Gardenphe’s assessment that the agreements were unenforceable.

“These extraordinarily broad NDAs are hopefully meeting their end at last,” he wrote in an email to Law&Crime. “There are valid and enforceable NDAs that can absolutely be crafted and utilized without so ridiculously ‘gagging’ individuals like the Trump campaign was doing here in a manner that made it virtually impossible to comprehend what possibly would not be implicated by the NDA.”

In an interview with Politico, Denson praised the ruling.

“I’m overjoyed,” Denson said. “This president … former president spent all four years aspiring to autocracy while claiming that he was champion of freedom and free speech. … There’s many people out there who have seen cases like mine and were terrified to speak out.”

A Trump aide told Politico that the former president’s camp disagreed with the outcome.

“We believe the court reached the wrong decision and President Trump’s lawyers are examining all potential appeals,” the unidentified aide said.

Read the full ruling below.

Denson NDA Order by Law&Crime on Scribd

[image via Doug Mills/Pool/Getty Images]

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Jerry Lambe is a journalist at Law&Crime. He is a graduate of Georgetown University and New York Law School and previously worked in financial securities compliance and Civil Rights employment law.