Jane Doe Wants to Tell All

Soon after a would-be elected official was nominated by her party for an elected office, Jane Doe applied for work as an assistant campaign manager. 

Before Doe began work, the Candidate required Doe – along with other campaign employees – to sign an agreement with her campaign (the “Employment Agreement”).  Doe remained an employee of the campaign until shortly after the candidate’s successful election. 

She now is considering writing a “tell-all” book about her campaign experiences.  She has come to you for advice about the agreement, before she approaches potential publishers.

The Employment Agreement provides as follows:

During the term of your service and at all times thereafter you hereby promise:

• • not to disclose, disseminate or publish, or cause to be disclosed, disseminated or published, any Confidential Information;

• • not to assist others in obtaining, disclosing, disseminating, or publishing Confidential Information;

• • not to use any Confidential Information in any way detrimental to the Candidate;

• • not to save, store or memorialize any Confidential Information (including, without limitation, incorporating it into any storage device, server, Internet site or retrieval system, whether electronic, cloud based, mechanical or otherwise) except as may be expressly required in connection with the performance of services to the Candidate or her campaign;

• • to (i) provide the Candidate with written notice of any legal obligation to disclose any Confidential Information as soon as you become aware of such obligation, (ii) not make any disclosure notwithstanding such obligation until the Candidate has had a reasonable opportunity to seek an appropriate protective order or similar relief, (iii) fully cooperate and join with the Candidate in any request for a protective order or similar relief, (iv) exercise all reasonable efforts to obtain reliable assurance that confidential treatment will be accorded such Confidential Information in the event no such protective order or similar relief is obtained, whether because it has been denied or because the Candidate has elected not to seek it, and (v) under all circumstances, not furnish any greater portion of the Confidential Information than you are advised by counsel is absolutely legally required to be disclosed by you or furnish any Confidential Information to any individual, company or governmental entity other than the one to whom or to which you are absolutely legally required to disclose it; and

• • promptly upon the request, whenever made, of the Candidate, (i) return to the Candidate all Confidential Information furnished to you, together with all copies, abstracts, notes, reports, or other materials furnished to, or otherwise obtained by, you or prepared by you or on your behalf, without retaining copies, extracts or other reproductions, whether physical, electronic, cloud based or otherwise, in whole or in part, (ii) destroy all documents, memoranda, notes or other writings prepared by you or anyone on your behalf that are based upon the Confidential Information, and (iii) acknowledge such destruction in writing.

The Employment Agreement defines “Confidential Information” as

all information (whether or not embodied in any media) of a private, proprietary or confidential nature or that Candidate insists remain private or confidential, including, but not limited to, any information with respect to the personal life, political affairs, and/or business affairs of Candidate,  including but not limited to, the assets, investments, revenue, expenses, taxes, financial statements, actual or prospective business ventures, contracts, alliances, affiliations, relationships, affiliated entities, bids, letters of intent, term sheets, decisions, strategies, techniques, methods, projections, forecasts, customers, clients, contacts, customer lists, contact lists, schedules, appointments, meetings, conversations, notes, and other communications of Candidate.

As to non-disparagement, the Employment Agreement provides as follows:

During the term of your service and at all times thereafter you hereby promise and agree not to demean or disparage publicly the Candidate, the campaign or any asset any of the foregoing own, or product or service any of the foregoing offer, in each case by or in any means or context and to prevent your employees from doing so.

As to remedies the Agreement provides as follows:

Consent to Injunction. A breach of any of your promises or agreements under this agreement will cause the Candidate irreparable harm. Accordingly, to the extent permitted by law, and without waiving any other rights or remedies against you at law or in equity, you hereby consent to the entry of any order, without prior notice to you, temporarily or permanently enjoining you form violating any of the terms, covenants, agreements or provisions of this agreement on your part to be performed or observed. Such consent is intended to apply to an injunction of any breach or threatened breach.

Agreement to Indemnify. You hereby agree to indemnify, defend (with counsel acceptable to the person you are defending) and hold harmless each person associated with the campaign and the Candidate from and against any claim, demand, suit, proceeding, damages, cost, loss or expense of any kind or nature, including but not limited to reasonable attorneys’ fees and disbursements, incurred by any such person as a consequence of your breach of any of your promises or agreements in this agreement.

Damages and Other Remedies. Notwithstanding anything to the contrary, the Candidate will be entitled to all remedies available at law and equity, including but not limited to monetary damages, in the event of your breach of this agreement. Nothing contained in this agreement will constitute a waiver of the Candidate’s remedies at law or in equity, all of which are expressly reserved.

Third Party Beneficiaries. Candidate is an intended third party beneficiary of this agreement. Without limiting the preceding sentence, Candidate, in addition to the Campaign, will be entitled to the benefit of this agreement and to enforce this agreement.

As to dispute resolution, the Employment Agreement provides that it is to “be interpreted and construed pursuant to the laws of the State of New York[.]”  The Campaign has brought claims for arbitration against other former Campaign workers for alleged breaches of the Employment Agreement (or similar non-disclosure agreements).

In your brief time for researching the issue, you found the lead New York case to hold as follows:

“Restrictive covenants, such as . . . confidentiality agreements [], are subject to specific enforcement to the extent that they are ‘“reasonable in time and area, necessary to protect the employer’s legitimate interests, not harmful to the general public and not unreasonably burdensome to the employee.”’

Ashland Mgmt. Inc. v. Altair Invs. NA, LLC, 59 A.D.3d 97, 102 (1st Dept. 2008), aff’d as modified, 14 N.Y.3d 774 (2010) (quoting BDO Seidman v. Hirshberg, 93 N.Y.2d 382, 389 (1999) (quoting Reed, Roberts Assocs. v. Strauman, 40 N.Y.2d 303, 307 (1976))).

How do you advise Jane?

Follow-up:  Based on the above law and the analysis provided to Jane, what practical advice might you give to a future candidate for elected office, as they prepare to staff up for their campaign?