There is an interesting fight brewing between the lawyers for Covington Catholic High School student Nichola Sandmann and CNN. We recently discussed how the Washington Post reached a settlement with Sandmann and how many in the media are still abusing this teenager despite the fact that he was not, as reported, the aggressor in an incident with a Native American activist in front of the Lincoln Memorial. The posting notes that CNN also reached a confidential settlement. Now, however, CNN’s chief media correspondent Brian Stelter and its legal analyst Asha Rangappa have commented on the settlement — dismissing it as involving just a small payment to end a nuisance lawsuit. Sandmann’s counsel Lin Wood has cried foul that this is a violation of the confidentiality terms which bar public comments on the agreement. Yet, Stelter and Rangappa are put on the air to discuss public controversies. These agreements are designed particularly to prevent comments to the media, but what if the party is the media? This is a major public controversy. The question is whether analysts discussing a news story is the same as CNN as an entity discussing terms of the agreement or disparaging the settlement. Wood clearly believes so.
Wood objected to a retweet from Stelter of a tweet from attorney Mark Zaid, who wrote “Those with zero legal experience (as far as I can tell) should not be conjecturing on lawsuits they know nothing about. What kind of journalism is that? I’ve litigated defamation cases. (Sandmann) was undoubtedly paid nuisance value settlement & nothing more.”
It is a rather ironic tweet since presumably Zaid has no knowledge or involvement in the settlement. Whatever “kind of journalism” or lawyering is involved, there is no way for any of us to know what was paid to Sandmann.
Wood went on the attack after the retweet: “This retweet by @brianstelter may have cost him his job at @CNN. It is called breach of confidentiality agreement. Brian Stelter is a liar. I know how to deal with liars,” Wood tweeted with a screenshot of Stelter’s retweet.
CNN analyst Asha Rangappa also weighed in and agreed with Zaid that “I’d guess $25K to go away.”
Wood also responded to that retweet by saying “Heads are going to roll at CNN or @N1ckSandmann is going to filing another lawsuit & reveal truth.”
At the outset, as I stated in the recent blog column, I find it astonishing and frankly disgraceful that media figures continue to downplay what happened to this 16-year-old boy in false accounts that ran nationally on his encounter. Neither he nor his lawsuit should be described as nuisances or improper. It was chilling to see a kid treated to such an abusive media frenzy including comparisons to George Zimmerman who killed an unarmed African American. The lack of empathy by figures like Stelter and Rangappa is striking in suggesting that this complaint should just “go away” like a strike suit or nuisance action filed by some crank. The media was wrong in its abuse of this kid. Terribly wrong. Yet, media figures continue to attack him for somehow causing this controversy.
Now to the legal issue. We do not know the language of the confidentiality agreement anymore than Zaid does. Often these agreements include provisions that bind the employees of the signatories. That is meant to avoid precisely this danger of companies attacking the other party through its employees while claiming adherence to the agreement as a corporate entity.
That however is tough when the entity is a new organization and this is news. For example, people look to Rangappa for legal analysis and she was analyzing the story. Moreover these tweets could be viewed by a court as de minimis, particularly Rangappa’s six words. Neither Stelter not Rangappa claimed knowledge of the settlement or disclosed terms. They did appear to disparage the underlying lawsuit and did comment directly on the settlement. That would technically trigger provisions of the agreement and it is the dilemma faced by CNN when it signs such agreements.
There is an interesting analogy to confidentiality agreements limiting future analysis or comments. Some confidentiality agreements seek to limit the ability of lawyers to represent individuals in the future. Model Rule of Professional Conduct 5.6 states that a lawyer shall not participate in “an agreement in which a restriction on the lawyer’s right to practice is part of the settlement of a client controversy.”
Here the agreement would contain a restriction of a news organization covering or discussing the settlement as part of a national news story.
The question could come down to the language. There are actually two types of provisions that could come into play, not one. First, there can be a confidentiality provision barring comments on the settlement other than an approved statement. These agreements often not only cover “disclosure” of terms but also comments on such terms. Thus, parties will sometimes agree that they will not allow anyone to make “statements or otherwise permit or cause any publicity, directly or indirectly, concerning any Settlement Information.”
Second, there is often a non-disparagement provision preventing “heirs, assigns, agents, employees and attorneys shall not disparage or make any derogatory remarks whatsoever about any of the other parties thereto or their heirs, assigns, agents, officers, directors, employees and attorneys.”
CNN’s lawyers obviously knew that this would be a newsworthy story so they had a choice of allowing their employees to discuss the settlement or barring such comments. If they did the latter, the attorneys would ordinarily send around a memo informing all employees that they are not to comment on the settlement or go beyond an approved statement.
It will come down, therefore, to terms. However, much like not knowing about the money exchanged in any settlement, we do not know the terms. There is no reason to assume that there was a tiny payment for nuisance value any more than a windfall. As we discussed earlier, the complaint against the Washington Post was dismissed as opinion but a court reinstated part of the complaint on appeal. That does not mean that it was a strong case for trial but there are plenty of settlements are reached on meritorious actions to avoid discovery or trial or the risk of an adverse trial verdict.
The attorneys for CNN may be the most miffed. Media lawyers are often the ones pushing for confidentiality because they do not want to encourage future lawsuits by stories of settlement payments. If these CNN employees are covered in the agreement, it could permit the filing of a new action for breach and a demand for damages. This could prove a couple of costly tweets for the company. However, if it turns out that way, the story shows the difficulty faced by media counsel in crafting non-disclosure agreements on issues of national concern. Ironically, in that respect, CNN finds itself in the same type of controversy over non-disclosure agreements that it has covered with respect to President Trump.