Judge Gardephe last week ruled that the non-disclosure and non-disparagement clauses found in the employment agreements for Donald Trump’s 2020 presidential campaign were void and unenforceable.  The action originally arose when the Trump campaign commenced an arbitration proceeding against a former staffer, claiming that she had breached the non-disclosure and non-disparagement clauses by filing a complaint alleging sex discrimination claims in New York state court.  The present complaint was brought as a putative class action by former employees of the campaign, who sought a declaration that these provisions of the employment agreement were unenforceable.

Judge Gardephe granted the plaintiffs’ motion for summary judgment, and focused on the breadth of the non-disclosure provision as a basis for finding it unenforceable:

Whether the scope of the restrictions in the non-disclosure provision is reasonable must be considered in light of what the Campaign contends are the “legitimate interests” protected by this provision. The Campaign argues that certain of the specified categories are “intrinsically ‘private’ for political campaigns,” including “political affairs,” “decisions,” “strategies,” and “communications.”  But even with respect to these categories the terms are not defined, and are thus broad enough to cover any information that relates to the Campaign whatsoever. For example, terms such as “political affairs,” “decisions,” “communications,” and “strategies” are broad enough to encompass any matter that relates to the Campaign.

The Campaign provides several examples of information that these terms cover, including “private ideas, strategies, decisions, and communications pertaining to targeting and connecting with voter populations; allocating financial and personnel resources; canvassing and polling voter populations; fundraising strategies; media and digital marketing information; and analyses of the strengths and weaknesses of a competing campaign.”  The Campaign may well have a legitimate interest in protecting information concerning these matters from disclosure. But the non-disclosure provision as written goes far beyond these examples. Indeed, the vagueness and breadth of the provision is such that a Campaign employee would have no way of what may be disclosed, and accordingly Campaign employees are not free to speak about anything concerning the Campaign. The non-disclosure provision is thus much broader than what the Campaign asserts is necessary to protect its legitimate interests, and therefore is not reasonable.