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How Herman Cain’s Accuser Can Speak Out

November 3, 2011

From The Atlantic.

Assuming the Association says no, Bennett will have two primary options for getting around the agreement. First, he can go to court and seek a declaratory judgment that states that the “confidentiality” provision is unconscionable, and against public policy, and thus cannot be enforced in the current circumstances. Or, Bennett can simply have his client speak out, technically breach the contract, and then make a similar argument on defense if the Association has the gall to sue the woman for defending her own honor. (Memo to Herman Cain: please don’t sing at your deposition).

Whatever “confidentiality” the agreement contemplated, Bennett would tell a judge, it didn’t contemplate silencing his client from responding to public comments made by the person allegedly responsible for the problem (and the underlying settlement) in the first place. There is no way to know for sure whether this argument would work — at a minimum we would need to see the specific language of the Association’s settlement agreement — and courts generally are reluctant to declare contracts unconscionable. But there is a clear legal path to allowing the woman to at least make the argument to a judge.


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