“Just Cain Let Go!” Why Cain should let accusers speak

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Yesterday, I defended Herman Cain here based on the evidence that was at hand as of that morning.  Today, I am feeling a little bit less charitable.  Changing his story as he remembers more details of the events is perfectly plausible — which is different, of course, from being actually true.  His denying that sexual harassment occurred is also to be expected.  Behaviors in “the gray area” of the less pernicious forms of sexual harassment — that is, not extortion, not battery, not intentionally causing emotion distress through invoking noxious stereotypes — don’t come pre-labeled as being or not being in the category of “sexual harassment”; that is for the courts to determine.  Here, the conflict did not go to court, so he can continue to maintain that what he did did not quality.

But when you start to go after the victims — giving details about their story and why they might have been terminated instead, such as poor performance — well, you have put your relevant body parts in a wringer.

Cain's carefully constructed image being ripped by GOP, but Rush's orders are to blame Dems.

At this point, my main interest in this matter is reminding people that it has been Republican opponents, rather than Democrats supposedly fixated on Cain’s race — which, to my mind, is interesting only in that it makes his successes in the business field more admirable — who have something to gain here.  I would have liked to see Cain stay strong in the race, so as to take a huge bite out of the presumptive nominee, Mitt Romney, and bleed him for as long as possible.  But now he’s just getting stupid, so what can one do?  Let’s see how this might play out.

Cain was, in a sense, right when he said today that he thought of this as a business agreement rather than a legal agreement, despite that it was most likely worked out by lawyers on both sides.  A settlement agreement is a contract, not a judgment directed by the court.  This didn’t go through the legal system.  It’s a private contract, whose terms one can then enforce by going to court.

Of course, my guess is that the settlement contract is with the National Restaurant Association, which I am tired of writing so I’m going to call them the NRtA, not with Cain himself.  It probably included a clause where the potential plaintiff gave up all claims against Cain based on actions that had occurred up to that moment (but not after); but the counterparty was probably not with him.  (If it was, then — well, he would have signed it.)  So that means that he probably has no right to sue to enforce the contract anyway, only the NRtA does.  The flip side is that it also means that while NRtA is bound by confidentiality, as are those whom it can control, former employee Cain isn’t — he’d just be, as I’ll note below, an idiot to breach it.

Here’s one of the things that boggled my mind in my first semester in law school: you can break a contract.  No problem.  In Germany, as I understand it, you can’t; your “seal” is supposed to be your bond.  But in the U.S. — feel free!  You just have to pay damages — usually provable damages.  This is called “efficient breach,” and free marketeers love it.  Regular people, when they hear about it, are usually indignant, but I’ll leave the argument about why allowing “efficient breach” is a good thing to others.

Those damages could exceed the amount of the settlement — theoretically.  (Good luck with that, though.)  If she got $35,000, the damages could be well beyond that.  (Not beyond what she’d get for writing a book about this, of course, but still potentially big.)  Here’s the twist: damages can be liquidated, which basically means “we’re not going to make the party injured by the breach prove damages, but we’re just going to set them at some fixed number which we agree is reasonable (though a court may disagree.)”  In that case, the contract will spell out the price of breaching the contract.  Or, they can be standard, in which actual damage must be proven in court.  With standard damages, you don’t get paid because your business could have suffered, but because it did suffer.

So, one consideration here is: how much damage would the NRtA experience — not because of what has already come out, but because she added to it by telling her side of thestory?  Let’s just say, I have my doubts how great those damages to the NRtA would be.  (ToHerman Cain, they could be much larger — but the agreement was not with him.  I doubt if it said that his damages could be included in a court case.)

(Note: this is not intended nor should it be taken as legal advice, or as an offer of representation, by anyone, including anyone sexually harassed by Herman Cain.  But if you’ve wanted to know how commercial lawyers think about these things, well, there you go.)

So, let’s say that she just went ahead and told her story: what does Cain then do?  Well, he could induce the NRtA to go to court to collect on those damages.

This would be a spectacularly, and I mean a spectacle of historical proportions, bad idea.

Why is that?  Well, first she could subpoena anyone else who might have had a confidentiality agreement with NRtA — or anyone else — for a settlement against Herman Cain anyway.  Second, it opens Cain to discovery into his practices in every other job he’s had — and not only on the job — regarding his relationships with female subordinates.  Butfirst will come the interrogatories, in which Cain will be ordered to write down the truth about relevant questions, which would surely include his entire history of sexual harassment complaints.

If he does not do so, and has no objection that would be upheld by a judge, then the suit would probably be tossed out.  (But, she might have a counterclaim as well, my guess is for defamation, and then he might have to answer them anyway.)  If he does answer them — well, he would have done so under penalty of perjury, and I somehow doubt that Cain would be able to keep his story both honest and benign.

By the way: the NRtA would go through discovery as well into its previous responses to sexual harassment complaints, and they probably don’t want to do that.  That is expensive and messy.

So, to get a relatively small amount of damages, Cain would be sticking his neck in the chopping block while juggling butcher’s knives.  If you’re the woman who made the complaint, how worried are you about this happening?

I’m skipping over the part where (1) the long period of time since the contract went into effect and (2) the fact that Cain has himself made potentially defamatory statements about her make a court less likely to deal with her harshly.  These are probably obvious.

I’m also skipping over the part where if she has a case for defamation, which I’m not sure that she does for technical reasons, but which she might, she could put at least some aspects of her story into such a complaint anyway.  (If she did this with a spurious claim, though, this could be a problem.)

But there is an audience-participation portion to this game as well.  If her concern is truly that she doesn’t want to break the contract — and there probably really is book money to be made here, so I have my doubts — she can set up a legal defense fund that would pay the costs of attorney fees and indemnify her for her contract damages.  Note: you can’t do this on your own, because you can’t solicit her to break a contract.  But if she did it, ostensibly only for attorney fees, then I don’t see why she could not make it happen.  (I’ve never set up a defense fund; maybe someone here would know.)

Conclusion: Herman Cain is playing a losing hand.  He should not have gone after the people who complained against him personally.  He would be smart to direct NRtA to allow release of her complaint against him — maybe it’s relatively innocuous and defensible.  (If not: why did you run for President?)  Republicans are already saying anti-feminist things about how women in the workplace should just — and I’m paraphrasing — “suck it up (figuratively) if their male bosses get a little bit frisky”; by all means let’s have that debate.

Release the obligation of confidentiality, NRtA.  It’s not going to hurt anyone who doesn’t deserve it, and the only one who probably really wants to go to court over this is her lawyer.