Weinstein Accusers Seek Secrecy for Opt-Out Agreement That Could Tank Settlement

Harvey Weinstein New York on December 20, 2018 - Getty Images - H 2020
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If a certain number of women who accuse Harvey Weinstein of sexual misconduct prior to 2005 opt out of a proposed class-action settlement, the whole deal could be voided — and lawyers for the class are asking the court to keep that number secret so no one tries to obstruct the deal in favor of obtaining more money.

The proposed agreement, which includes an $18.8 million victims fund, would resolve many (though not all) civil claims against Weinstein, The Weinstein Co. and several of its directors and execs — none of whom have admitted any wrongdoing. Wigdor Law, which represents several women with claims against the now-jailed producer, immediately decried the deal as "a complete sellout of the Weinstein survivors."

As part of the proposed settlement, the parties are to submit a written agreement regarding women from a specific subclass (women whose alleged injuries happened while Weinstein was employed by Miramax) who could opt out of the deal and trigger a defendant or insurance company's right to withdraw from the settlement. If any of those parties withdraw, the whole settlement is null and void and the cases pick back up where they left off in court. 

"Courts generally recognize that the threshold number of opt outs required to trigger a termination provision in a class settlement agreement is typically kept confidential to encourage settlement and discourage third parties from soliciting class members to opt out," writes attorney Elizabeth Fegan. "[T]he Settlement Class Representatives respectfully request leave to submit the Pre-2005 Subclass Opt-Out Agreement in camera."

Fegan argues there are compelling reasons for the court to allow the opt-out agreement to be filed under seal and it outweighs any public interest in the disclosure. Some of the case law she cites suggests courts tend to keep this information confidential because "disclosing the opt-out threshold would practically invite professional objectors to threaten the settlement by soliciting opt-outs."

She says the only information that would be kept confidential is the number of opt-outs that would trigger the termination right and the deadline for the defendants to exercise the right to withdraw.

"The specific opt-out threshold is irrelevant to Settlement Class Members' ability to evaluate the material terms of the Settlement and make an informed decision on whether to participate," writes Fegan. "All information pertinent to Settlement Class Members' decision to participate in, opt-out of, or object to the proposed Settlement is contained in the Settlement Agreement and Notice documents."