Harvey Weinstein: how lawyers kept a lid on sexual harassment claims
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Nineteen years ago this month, Zelda Perkins walked out of Miramax’s London offices on Brewer Street in Soho for the last time and went to see a lawyer with a female colleague. They were seeking urgent advice. Ms Perkins, who had worked for Miramax as Harvey Weinstein’s assistant, says she has endured several years of sexual harassment by him but had been spurred to quit after the colleague said the film mogul had sexually assaulted her.
After recounting their stories to solicitors at Simons Muirhead & Burton, a London legal firm that specialises in media work, the two women were advised to seek a damages claim from Mr Weinstein. A negotiation began with Allen & Overy, the heavyweight London firm that was acting for the producer of movies such as Pulp Fiction and The English Patient.
A sum of £250,000 was agreed, to be divided equally between the two women, and a legally binding contract — a non-disclosure agreement — drawn up after several punishing late-night sessions. The women signed it and for almost two decades have not spoken about their experience.
Until now. Ms Perkins is breaking the terms of that contract in the Financial Times to talk about her time at Miramax working for Mr Weinstein and the “incredibly distressing” experience of negotiating her NDA — a process that pitted a young woman against the legal might and power of one of Hollywood’s most powerful figures. The recent firing of Mr Weinstein and the emergence of dozens of women who have alleged harassment and assault by him has emboldened her to come forward. In an interview with the FT, she says she wants to shine a light on the workings of a secretive legal process utilised by the rich and powerful to silence victims of sexual harassment.
“I want to publicly break my non-disclosure agreement,” she says. “Unless somebody does this there won’t be a debate about how egregious these agreements are and the amount of duress that victims are put under. My entire world fell in because I thought the law was there to protect those who abided by it. I discovered that it had nothing to do with right and wrong and everything to do with money and power.”
Ms Perkins, who now works for the theatre production company Robert Fox, is aware that breaking the contract is risky but says she is prepared to take a stand. She does not even have a copy of her NDA — the agreement that was struck in October 1998 prohibited her from having one — although she does have several pages from it outlining Miramax’s obligations to her, and hers to the film company.
There are plenty of clauses in it to direct and curtail her future behaviour, including if she were ever asked to provide testimony. One says that if “any criminal legal process” involving Harvey Weinstein or Miramax requires her to give evidence, she will give 48 hours notice to Mark Mansell, a lawyer at Allen & Overy, “before making any disclosure”.
In the event her evidence is required, “you [she] will use all reasonable endeavours to limit the scope of the disclosure as far as possible”, the agreement says, adding that she will agree to give “reasonable assistance” to Miramax “if it elects to contest such process”.
Mr Mansell and Allen & Overy declined to comment on Ms Perkins’ agreement, as did her solicitors at Simons Muirhead & Burton.
Amid the wave of sexual harassment and assault claims in the US, NDAs and the lawyers who help devise them have emerged as a critical element in explaining why so many of those cases remained secret for so long. These accusations have been directed not just at Mr Weinstein in Hollywood, but also Roger Ailes and Bill O’Reilly, the former chairman and star anchor, respectively, at Fox News.
While Ms Perkins is not the first woman to come forward with claims about harassment from an all-powerful boss, she is one of the first to lift the veil of secrecy to show the invasive process involved in securing such an agreement. Her ordeal included days of gruelling questioning at Allen & Overy’s London office, capped by a 12-hour session before a phalanx of Mr Weinstein’s lawyers that broke at 5am.
“I was made to feel ashamed for disclosing his behaviour and assault, and expected to name those I had spoken to, as if they too were guilty of something,” she says.
Ms Perkins never had any ambitions to work in the film industry. In fact, if she had not followed a boyfriend to New York after finishing university in Manchester she may never have crossed paths with Mr Weinstein.
A television series was being shot on the street where she was staying and a chance meeting led to a job. When it was time for her to return to London a New York colleague introduced her to Donna Gigliotti, a producer who was already working for Miramax — and who would go on to win an Oscar for Shakespeare in Love. That led to a script development job at Miramax’s London office. It was a predominantly female office, she recalls.
Soon after she had started she was called at home by a senior female colleague. “Harvey usually had three assistants working for him in London but one of them had gone Awol. I was asked to step in.”
Mr Weinstein would regularly stay at The Savoy on his London trips and his assistants would work with him in his suite. “I remember taking a call in the room when another call came through on another phone. He swore at me to ‘pick up the f***ing phone’. I said: ‘I’m already on the f***ing phone!’ It sealed my fate as someone who could stand up to him. It wasn’t bravery, it was naivety.”
“He had a need to annihilate and humiliate men,” she adds. “But with women it was all about seduction and submission. Harvey made you feel in an honorary position of trust and influence which he then used as a tool to exert control.”
Despite these misgivings, when asked to become his permanent UK assistant she accepted. At the time Miramax “felt like the centre of the universe”. She sat in on meetings Mr Weinstein had with stars such as Leonardo DiCaprio and Gwyneth Paltrow and he asked for her opinion on scripts. “He made me feel that he valued my opinion.”
Her first direct experience of sexual harassment by Mr Weinstein was the first time she was alone with him. “He went out of the room and came back in his underwear. He asked me if I would give him a massage. Then he asked if he could massage me.” She declined.
She says he would often walk around the room naked and asked her to be in the room while he had a bath — which tallies with the experience of other women who have come forward. “But this was his behaviour on every occasion I was alone with him. I often had to wake him up in the hotel in the mornings and he would try to pull me into bed.”
The final straw came with the assault on her colleague. They were in Venice for the film festival and were staying at the Excelsior hotel from September 4 to September 7, 1998. She knows the dates are right because she still has her appointments diary from the time.
Late one day her colleague came to see her in distress. “She was white as a sheet and shaking and in a very bad emotional state. She told me something terrible had happened. She was in shock and crying and finding it very hard to talk. I was furious, deeply upset and very shocked. I said: ‘We need to go to the police’ but she was too distressed. Neither of us knew what to do in a foreign environment.”
Ms Perkins immediately confronted Mr Weinstein, who told her nothing had happened. “It was very clear looking at the state my colleague was in and then looking at Harvey that I believed her.” In a statement Mr Weinstein’s spokesperson said: “The FT did not provide the identity of any individuals making these assertions. Any allegations of non-consensual sex are unequivocally denied by Mr Weinstein. Mr Weinstein has further confirmed that there were never any acts of retaliation against any women for refusing his advances.”
On her return to London, Ms Perkins went to see Simons Muirhead & Burton, where she met a solicitor at the firm. “I remember telling her about work and conditions with Harvey and she was incredulous. She said it was sexual harassment. I was slightly embarrassed about how naive I had been.”
Miramax was owned by Walt Disney at the time and Ms Perkins was aware that Mr Weinstein had been clashing with Michael Eisner, Disney’s then chief executive.
“I wanted to expose him [and] thought that we could go to Disney,” she says. “But the lawyers were reluctant. They said words to the effect of: ‘they are not going to take your word against his with no evidence’.”
She says the lawyers told her the only option was a damages agreement. “I was very upset because the whole point was that we had to stop him by exposing his behaviour. I was warned that he and his lawyers would try to destroy my credibility if I went to court. They told me he would try to destroy me and my family.”
Money was never a factor, she says: in fact, she vehemently stated to her lawyers that she did not want money to change hands. “My driving motivation was to create safeguards to protect future employees. I gave SMB a list of demands aimed at controlling his behaviour, such as a commitment that he receive medical treatment and the creation of a proper human resources complaints procedure at Miramax so that people would be aware of their rights and could complain about harassment if they needed to.”
SMB advised her to seek a year’s salary, which she says would have been a pittance to Mr Weinstein: she was earning around £20,000 at the time. She sought guidance from a senior female American colleague who knew of Mr Weinstein’s behaviour. She told her to negotiate a higher figure because she had “more power than I was aware of”. After some discussion SMB asked for damages of £250,000. They called Allen & Overy and half an hour later the firm called back to accept.
The award, which had been provisionally agreed, initially included a substantial donation to a women’s charity — although Ms Perkins says that donation demand was later shelved. But her demands for the creation of a complaints procedure at Miramax and for therapy for Mr Weinstein — which included her being able to meet his therapist — were written into the agreement.
A letter from her solicitor summarising her obligations states that he would receive therapy “for as long as his therapist deems necessary”: the company confirmed that it would comply with this clause for three years.
Miramax said that within six months of its agreement with Ms Perkins the company would appoint three “complaint handlers” who would investigate future harassment allegations. It also agreed to provide proof of how its staff were told about the new procedures. Crucially, if a complaint against Mr Weinstein occurred within two years of the contract and it resulted in a settlement of either £35,000 or six months’ salary Miramax agreed to report the matter to Disney — or to dismiss Mr Weinstein.
Although these and other obligations ended up in the contract it is not known whether Miramax fully abided by them.
The negotiation with Allen & Overy took a heavy emotional toll, she says. As part of the agreement she had to tell Allen & Overy every individual she had shared her story with so that it could be written into her contract. “If I had mentioned any individuals to my legal representatives they couldn’t withhold that information. It all had to be disclosed.”
There were several intense negotiation sessions at Allen & Overy’s office in London. “At 24 years old in a room full of lawyers I felt unsupported by my legal team. Looking back I understand they were following correct practice but at the time I felt totally isolated.”
Nineteen years later, memories of that period are still raw. “I was pretty broken after the negotiation process.” Her goal now is to start a debate about confidential agreements like the one she signed. “I’m not saying that they shouldn’t exist. But they need to be regulated in a fair way.” She says she is astonished by a system that prevents her from having a copy of her own agreement.
“I want to call into question the legitimacy of agreements where the inequality of power is so stark and relies on money rather than morality,” she says. “I want other women who have been sidelined and who aren’t being allowed to own their own history or their trauma to be able to discuss what they have suffered. I want them to see that the sky won’t fall in.”
NDAs: a legal weapon used to silence and intimidate
Companies, and individuals, have a range of ways to make sure stories about misconduct do not spread.
Most financial settlement agreements between accused and accuser include non-disclosure provisions that bar the person receiving the financial settlement from talking about their allegations or even revealing the amount of the settlement, according to lawyers who have represented women in sexual harassment cases. Non-disparagement provisions, which prevent an alleged victim from speaking ill of the person or company they have accused, are also common.
The penalties for breaking this silence can be steep. “A lot of defendants and the companies they work for are powerful. They can put in draconian liquidated damages provisions in the event there is disclosure,” says one lawyer who has worked on such cases.
For example, an alleged victim might be forced to pay back not just the full amount of the settlement but also an additional financial penalty and the other party’s legal fees. “There is a lot of fear hanging over your head,” the lawyer says.
Many of the women who received settlements after accusing Roger Ailes, the former Fox News chief executive and Bill O’Reilly, one of its key presenters, of sexual harassment do not feel free to speak publicly about their experiences because of NDAs. That includes Gretchen Carlson, who received a $20m settlement in a lawsuit she filed against Ailes in 2016 that set off a cascade of allegations about the cable news network’s most powerful figures.
Ms Carlson has become an advocate for prohibiting forced arbitration clauses and their accompanying NDAs. “We have chosen as a culture to silence the victims either with settlements where you are gagged from ever saying what happened to you or enforced arbitration, which is a part of employment contracts now, and here’s the key — it’s secret,” she told CBS News last week.
However, NDAs cannot lawfully prevent people from reporting claims to law enforcement and government agencies, such as the Equal Employment Opportunity Commission in the US, or responding to a subpoena.
Allegations of sexual harassment or misconduct can also be kept quiet by limiting what employees can say about their workplaces. Employment contracts often include NDAs. Many also require that any complaints, including sexual harassment, be resolved in private arbitration rather than a courtroom. Those arbitration-only clauses — which are being challenged in a Supreme Court case — typically limit what a worker can say about the complaint and the ensuing arbitration.
“All of these operate to silence survivors of sex harassment and sex assault from coming forward and reporting, and they also help shield serial harassers from accountability,” says Maya Raghu, director of workplace equality at the US National Women’s Law Center. “As we’ve seen in the last few weeks, many survivors feel like ‘I’m the only one who this has happened to’ — so they stay silent.” Shannon Bond
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Letter in response to this editorial:
Ordeal at lawyers’ hands was a form of harassment / FFrom Robert Stephens, Edinburgh, UK
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