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On Oct. 15, about 25 protesters gathered in front of Los Angeles County Superior Court, brandishing signs that read “Hold Hollywood Accountable” and “Let Charlotte Speak.” Inside, Judge Christopher Lui was hearing arguments from lawyers for Charlotte Kirk as well as an attorney for embattled industry power brokers Kevin Tsujihara, James Packer, Brett Ratner and Avi Lerner. At stake was the enforceability of confidentiality agreements in the #MeToo era.
The protesters, who are members of Stand With Survivors — a group that includes figures like former Fox News anchor Gretchen Carlson and accusers of Harvey Weinstein — were looking to sway Judge Lui as he weighed Kirk’s petition to vacate a gag order issued by an arbitration judge in June. The petition — which details a 2013 incident at the Hotel Bel-Air in which Packer allegedly coerced the autistic actress into having sex with Tsujihara — has become the first known test of #MeToo legislation signed into law in September 2018 that banned the use of nondisclosure agreements in sexual misconduct cases.
Lui wasn’t persuaded by the group. The day before the hearing, he issued a tentative ruling that denied Kirk’s petition, saying the court lacked jurisdiction. This week, Lui went ahead and denied the petition. The decision is a setback for Kirk, the British actress at the center of dual scandals that led to the ouster of former Warner Bros. CEO Tsujihara and NBCUniversal vice chair Ron Meyer. But the implications are far greater given that Kirk is testing California’s “STAND” Act (“Stand Together Against Non-Disclosures”).
In 2017, with an eye on the ways that high-profile individuals including Weinstein and Roger Ailes had hushed up years of sexual misconduct, California lawmakers prohibited provisions in settlement agreements that prevented the disclosure of information about a felony sex offense. Additionally, the STAND Act (otherwise known as SB 820) amended civil procedure so that courts could not enter any order restricting such information. But to anyone who believed California’s response to the #MeToo movement would end secrecy deals surrounding sexual misconduct once and for all, guess again. As shown by Kirk’s recent battle, the STAND Act contains a pair of flaws that arguably render it toothless.
First, the law explicitly pertains to sexual abuse hush deals “related to a claim filed in a civil action or a complaint filed in an administrative action.” So must a lawsuit commence before the “STAND” Act kicks in? It’s not definitive, but that was an arbitrator’s conclusion in deciding to enforce a gag order against Kirk. The arbitrator wrote, “Any other reading of the statute would mean that claims of sexual harassment could never be settled and would always go to court because no one accused of such behavior would ever agree to pay money unless the person making such claims agreed not to disclose the alleged conduct.”
Second, and perhaps of even greater significance, this country has scripture blessed by the Supreme Court honoring the sanctity of arbitration. Kirk’s attorneys may argue that the arbitrator got it wrong, but in the view of Judge Lui, to do anything to the arbitrator’s issued injunction would be to taint the efficacy of the arbitration process. Lui not only has ruled that he lacks jurisdiction to take up the gag order, he has kept the court record sealed. (That THR learned of and reported on this dispute was the subject of some discussion by the parties and the judge.) The case is destined to be appealed. And his decision is not sitting well with some of those involved with SB 820.
“It’s setting up an impossible standard to implement this law,” says Caroline Heldman, the co-founder of Stand With Survivors who helped craft the legislation with California Sen. Connie Leyva. “This ruling extends well beyond this one case. It’s a pivotal moment as to whether or not the courts will uphold gag orders in cases of sexual violence. We fought long and hard to pass a law against silencing survivors of sexual violence, and these limitations are not what Sen. Leyva intended with the bill, and it’s not what Gov. [Gavin] Newsom assumed would happen when he signed the bill into law.”
Kirk’s case, which has largely played out away from public view, has begun to attract the attention of some prominent members of the #MeToo movement, including Rose McGowan. The actress, whose settlement with Weinstein was disclosed in a New York Times article that helped usher in Hollywood’s #MeToo reckoning, took issue with the fact that Kirk continues to be muzzled, even as she is maligned. “What is happening to Charlotte Kirk violates California law,” says McGowan. “That she can’t speak out while the bad guys drag her name and twist facts to benefit them is exactly why this law was passed.”
In Kirk’s case, she was poised to file a civil lawsuit against Tsujihara, Packer, Ratner and Lerner back in June 2017. At the time, her attorneys at Johnson & Johnson sent out a demand letter to attorney Marty Singer that chronicled her version of the Bel-Air encounter. “Packer then coerced Ms. Kirk into having sex with Tsujihara, who also promised to get her a role in one of his upcoming films,” the letter said. “As a result of her autism, Ms. Kirk was unable to realize the fact that a group of powerful Hollywood players were taking advantage of her by passing her around for sex while falsely promising her acting roles.” (Tsujihara and Packer have denied this description of events, and the former has insisted their interactions, which continued after the Bel-Air incident, were consensual.)
But Meyer talked Kirk out of the suit, and she instead entered into a settlement agreement in August 2017 with the four men that included a confidentiality agreement. Later that year, just as #MeToo was rocking Hollywood and bringing down heavy hitters like Ratner — who was accused of sexual misconduct by six women in a Los Angeles Times story — Singer took the confidentiality agreement one step further and amended the settlement to include a preapproved statement from Kirk exonerating the men in the event that reporters ever delved into the Bel-Air incident, as THR did last year. Since 2017, Kirk has been mostly silent, even as Meyer disparaged an unnamed woman — identified hours later as Kirk — upon his exit.
Confidentiality agreements have a long, troubling history in Hollywood of benefiting alleged perpetrators, Leyva says, adding, “Imagine if that first woman in the Harvey Weinstein case had not been forced into a secret settlement, maybe the 79 other women that he assaulted would not have had to go through that.”
Back in 2017, Kirk’s then-boyfriend, director Joshua Newton, also signed the settlement agreement, but neither he nor Kirk was aware that Meyer had been added as a released party (both Kirk and Newton later pursued claims against Meyer).
Newton’s attorney, Larry Caldwell, argued in court Oct. 15 that Singer filed for a temporary restraining order in June in an effort to prevent the director from filing a lawsuit against Meyer. “The linchpin of why Mr. Singer’s clients are pursuing this is: He knows that we spent seven or eight months from February to Aug. 18 starting to mediate a very large lawsuit that we are going to be filing against Ron Meyer and NBCUniversal,” Caldwell said. “Part of their motivation was to prevent us from using evidence relevant to that lawsuit because Mr. Meyer got involved covering up all the stuff that we’re dealing with in this case.”
At the end of the hearing, Singer asked that the transcript of the session be sealed, but Judge Lui balked at that request. “I think it’s too late for me to order anything to be sealed. We have third parties in the courtroom,” he said. “The cat’s out of the bag.”
Still, it appears that much will remain in the bag, at least for now, when it comes to Kirk. In short, California lawmakers may have hoped to make a stand against NDAs, but Hollywood power lawyers now have a blueprint for keeping alleged victims silent: Use arbitration provisions and, at the first sign of trouble, rush to an arbitrator and obtain an injunction against the filing of any action in open court.
This story appears in the Oct. 21 issue of The Hollywood Reporter magazine. Click here to subscribe.
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