In practice, the "actual malice" is almost impossible to prove. If there were two settlements, we really start getting into an area of - where was the defamation?
You keep referring to it as a settlement. Cain made a big deal about it being an agreement. Do you see a difference? Also, until we see what the complaints were, how can we judge if there was anything to them? We will probably never know since it is common to pay people to just go away, whether the complaint is justified or not. I've seen it many times.
I haven't followed it closely. Did she refuse to give the NRA the right to release the agreement?
I have followed it reasonably closely. It is my understanding that her attorney hid behind the nondisclosure agreement. Then the NRA released her from the agreement, but she didn't disclose it. Neither did the NRA. Whether the NRA asked her to release them or not, I haven't heard. I suspect that the NRA would like to stay as far away from this as they can.
By the way, I'm sure you've heard the quip that the law is a game that lawyers play using other people's money to keep score. That's certainly been my experience, and a great deal of it was mine. :-/
I had tossed in Memphis, Tennessee as an example of another historically corrupt city and Logan Young as one very minor possible example of corruption, and clearly not the best example of Memphis corruption. Was it a local story (I don't live in Memphis)? The concept of 'local' is always relative. Viewed in one perspective, Caylee Anthony was a local Orlando, Florida, story. Her disappearance and death, and her mother Casey's trial, were in Orlando.
You keep referring to it as a settlement. Cain made a big deal about it being an agreement. Do you see a difference?
No.
That's the magic of we lawyers. There's no law stating that when you settle a dispute you must call the resolution a "settlement." The resolution is whatever the parties agree it is.
In Chapter 6 of Lewis Carroll's classic, Through the Looking Glass, Alice confronts Humpty Dumpty about using the word "glory" to mean a "nice knock-down argument." In reply:
When I use a word,' Humpty Dumpty said, in rather a scornful tone, 'it means just what I choose it to mean — neither more nor less.'
'The question is,' said Alice, 'whether you can make words mean so many different things.'
'The question is,' said Humpty Dumpty, 'which is to be master — that's all.'
When resolving a dispute such as sexual harassment claim, the 'style' (title) of the document resolving the claims, and the description of any payment made in resolution means just what the parties choose them to mean, and the parties are master.
To make this generic, I'll refer to to Company and Employee (because that rolls off the tongue easier than Aggrieved Party), instead of National Restaurant Association and Cain Accuser.
Off the top of my head, I could style the resolution agreement: Agreement; Resolution; Resolution Agreement; Settlement; Settlement Agreement; Termination Agreement (if the Employee agreed to be terminated so she could receive unemployment); Severance Agreement (if the Employee agreed to leave employment with unemployment benefits); Declaration of Rights, Agreements, Covenants, Represents, and Warranties of the Parties; or Agreement Without Title. I could simply not give it a style (in which case people would probably call the agreement). To compound matters, if the agreement (and they're all agreements, even a settlement) provided for nondisclosure, modify the above styles, so that you have styles such as: Resolution and Nondisclosure Agreement; Resolution and Covenant of the Parties Not to Make Disclosures; Resolution and Agreement not to Disclose; and Resolution and Confidentiality Agreement; Resolution and Mutually Beneficial Binding Particulars With Respect to Confidentiality of Its Terms.
We attorneys are (and I say this with admiration and self-loathing) regular Humpty Dumptys.
Now, let's start our heads spinning. This agreement, whatever we may wish to call it, is to provide for a payment by Company to Employee (or maybe not, please follow me). Generally, the Employee is only concerned with receiving the money; if so, then the Employee does not care what the payment is called, and in what terms the payment is couched. It may be a settlement payment or a resolution payment. In most cases, however, the company wishes honestly to be able to say it never paid a settlement to Employee. Or honestly to be able to say in only paid x settlements. So, if the claim was never made public before it was paid, and the employee will no longer be working at the company, the money is paid as a severance payment or a termination payment.
Humpty Dumpty lives! The parties are the master, not the words.
I've seen on situation in which the payment is made to a charity, because the employee is more interested in making certain the employer 'feels the pain' than in receiving the money. And because the payment was a donation to a corporation that was exemption from Federal taxation under Section 501(c)(3) of the IRS Code, the corporation's payment was tax deductible and the employee had the leverage to make the company pay more in settlement.
But the agreement simply indicated that the Company agreed to make a charitable contribution to a specific charity; the Employee agree to a waiver and dismissal of all claims of (in my case, age discrimination) sexual discrimination (using appropriate legalese) arising from or related to her employment by Company during the period of her employment (notice that no particular offending executive is named, serving two purposes; first, it's additional blanket protection for the Company, and second, no executive's name appears); Employee's employment is terminated immediately; and nobody can disclose the terms except as required by law, or in testimony in court (many states have specific legal exceptions to nondisclosure terms in employment contexts). There's a lot of specific waivers under Federal laws, and legalese regarding COBRA, and everything is much more specific and tightly worded than I suggested. There are several pages of boilerplate provisions to address Federal and state employment issues.
The agreement may be styled "Confidential Agreement to Make Charitable Contribution."
Can you imagine how a Company executive who was the subject of a sexual harassment claim could play that in the press years later?
So, after FR's lengthiest lead-in, allow me to return to your question.
Cain made a big deal about it being an agreement. Do you see a difference?
No. As a former Cain supporter, that position either shows that Cain is naive or is playing word games in a style that rivals Bill Clinton. There. Is. No. Difference.
I had tossed in Memphis, Tennessee as an example of another historically corrupt city and Logan Young as one very minor possible example of corruption, and clearly not the best example of Memphis corruption. Was it a local story (I don't live in Memphis)? The concept of 'local' is always relative. Viewed in one perspective, Caylee Anthony was a local Orlando, Florida, story. Her disappearance and death, and her mother Casey's trial, were in Orlando.
You keep referring to it as a settlement. Cain made a big deal about it being an agreement. Do you see a difference?
No.
That's the magic of we lawyers. There's no law stating that when you settle a dispute you must call the resolution a "settlement." The resolution is whatever the parties agree it is.
In Chapter 6 of Lewis Carroll's classic, Through the Looking Glass, Alice confronts Humpty Dumpty about using the word "glory" to mean a "nice knock-down argument." In reply:
When I use a word,' Humpty Dumpty said, in rather a scornful tone, 'it means just what I choose it to mean — neither more nor less.'
'The question is,' said Alice, 'whether you can make words mean so many different things.'
'The question is,' said Humpty Dumpty, 'which is to be master — that's all.'
When resolving a dispute such as sexual harassment claim, the 'style' (title) of the document resolving the claims, and the description of any payment made in resolution means just what the parties choose them to mean, and the parties are master.
To make this generic, I'll refer to to Company and Employee (because that rolls off the tongue easier than Aggrieved Party), instead of National Restaurant Association and Cain Accuser.
Off the top of my head, I could style the resolution agreement: Agreement; Resolution; Resolution Agreement; Settlement; Settlement Agreement; Termination Agreement (if the Employee agreed to be terminated so she could receive unemployment); Severance Agreement (if the Employee agreed to leave employment with unemployment benefits); Declaration of Rights, Agreements, Covenants, Represents, and Warranties of the Parties; or Agreement Without Title. I could simply not give it a style (in which case people would probably call the agreement). To compound matters, if the agreement (and they're all agreements, even a settlement) provided for nondisclosure, modify the above styles, so that you have styles such as: Resolution and Nondisclosure Agreement; Resolution and Covenant of the Parties Not to Make Disclosures; Resolution and Agreement not to Disclose; and Resolution and Confidentiality Agreement; Resolution and Mutually Beneficial Binding Particulars With Respect to Confidentiality of Its Terms.
We attorneys are (and I say this with admiration and self-loathing) regular Humpty Dumptys.
Now, let's start our heads spinning. This agreement, whatever we may wish to call it, is to provide for a payment by Company to Employee (or maybe not, please follow me). Generally, the Employee is only concerned with receiving the money; if so, then the Employee does not care what the payment is called, and in what terms the payment is couched. It may be a settlement payment or a resolution payment. In most cases, however, the company wishes 'honestly' to be able to say it never paid a settlement to Employee. Or 'honestly' to be able to say in only paid x settlements, and doesn't want this payment to add to the number of settlements it has paid. So, if the claim was never made public before it was paid, and the employee will no longer be working at the company, the money is paid as a severance payment or a termination payment.
Humpty Dumpty lives! The parties are the master, not the words.
I've seen on situation in which the payment is made to a charity, because the employee is more interested in making certain the employer 'feels the pain' than in receiving the money. And because the payment was a donation to a corporation that was exemption from Federal taxation under Section 501(c)(3) of the IRS Code, the corporation's payment was tax deductible and the employee had the leverage to make the company pay more in settlement.
But the agreement simply indicated that the Company agreed to make a charitable contribution to a specific charity; the Employee agree to a waiver and dismissal of all claims of (in my case, age discrimination) sexual discrimination (using appropriate legalese) arising from or related to her employment by Company during the period of her employment (notice that no particular offending executive is named, serving two purposes; first, it's additional blanket protection for the Company, and second, no executive's name appears); Employee's employment is terminated immediately; and nobody can disclose the terms except as required by law, or in testimony in court (many states have specific legal exceptions to nondisclosure terms in employment contexts). There's a lot of specific waivers under Federal laws, and legalese regarding COBRA, and everything is much more specific and tightly worded than I suggested. There are several pages of boilerplate provisions to address Federal and state employment issues.
The agreement may be styled "Confidential Agreement to Make Charitable Contribution."
Can you imagine how a Company executive who was the subject of a sexual harassment claim could play that in the press years later?
So, after FR's lengthiest lead-in, allow me to return to your question.
Cain made a big deal about it being an agreement. Do you see a difference?
No. As a former Cain supporter, that position either shows that Cain is naive or is playing word games in a style that rivals Bill Clinton. There. Is. No. Difference.