In fairness to your lawyer, most of us would agree that “denigrating” is in the eye of the viewer, or at least should be. The word seems far too vague to fulfill the traditional test of contract law, to know exactly what the parties agreed on – a “head meeting,” as we like to put it. What is denigration? How do you do it? How can someone stop us from doing this? And what about our precious right to free speech in the First Amendment of the Constitution? These seem to be like slam-dunk defenses to be prosecuted for denigrating someone, even if you agreed not to. For years, employers have used confidentiality agreements to protect the disclosure of trade secret information. You know, which, if it were in the hands of your competitor, would be devastating. Confidentiality agreements for current employees rarely contained non-disparagement clauses. Instead, the non-vaccination clause for dispute resolution was retained. Why start a relationship with the expectation of a chaotic divorce? Non-disparaging clauses are widely used in employment contracts and termination agreements. The same risks and advice apply, although the EEOC and other government agencies have recently expressed concerns about whether some denigration clauses could go too far in illegally prohibiting employees or former employees from filing legitimate but “derogatory” charges with these agencies. As a result, many denigration clauses today make exceptions for filing such fees, and you should ask yourself this exception and any other that might apply to you if you sign one. You settle your case and the accused agrees to pay you a lot of money. All that remains to be done is sign a “standard” settlement agreement prepared by the accused`s lawyer. You go to page 10 and see a paragraph called “No denigration.” You see that this means that neither side is going to “denigrate” the other.
One day. You call your lawyer who tells you not to worry, that it`s a usual provision and probably doesn`t mean anything. He`s not even sure what denigration is, and wouldn`t that really be hard to prove? Most clients, often on the advice of their lawyer, sign these things every day. If you think you know the identity of the examiner, the first step is to check the content of the assessment. Often, examiners violate both the confidentiality part (disclosure of protected information) and the non-disparaging part (saying bad things) of their agreement. This is not the case. Although there is no notified decision of the state court, the Arizona Federal District Court considered these issues in FreeLife Int`l, Inc. Éduc.
Music Publications Inc., 2009 WL 3241795 (D.Ariz. 2009). FreeLife, an online distributor on the Internet, sued the defendant, among other things, for breach of a contract he had apparently “accepted” by pressing the “I Accept” button on the FreeLife website to become an “executive marketing” for the company. This contract contained a non-disparagement clause from Boilerplate that said that if you are considering signing an agreement with a non-disparagement clause, ask questions about it, ask them and get competent legal advice, especially if you are the one who, say, will denigrate the other contracting party instead. But wait! It turns out that your lawyer may have been wrong. . . .