Non‑Disclosure Provisions in Settlement Agreements in the Wake of #MeToo

The #MeToo movement first gained traction in October 2017 following high-profile sexual abuse allegations against movie producer Harvey Weinstein. In the months that followed, hundreds of thousands of people posted to social media using #MeToo, telling their own stories of sexual harassment and abuse. One area on which legislators focused in response was the use of non-disclosure provisions in confidential severance, separation and settlement agreements. In a guest article, Morgan Lewis partner Leni D. Battaglia discusses recent laws enacted in California, New Jersey and New York – where many private fund managers have offices and employees – that restrict the use of non-disclosure provisions in settlement and other agreements with employees. In addition, this article provides practical guidance on how fund managers can draft compliant non-disclosure provisions in those agreements. See “What Fund Managers Need to Know About the Legislative Response to #MeToo” (May 3, 2018); and our two-part series on #MeToo and the PE industry: “How Managers Can Mitigate Risk Through Portfolio Company Diligence” (Apr. 23, 2019); and “Common Mistakes, Potential Risks and the Movement’s Impact on the Deal Process” (Apr. 30, 2019).

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