Herman Cain May be Breaking Confidentiality Agreement, Say Experts

Nov. 2, 2011 — -- Herman Cain might be breaching the confidentiality agreement reportedly muzzling his alleged sexual harrassment accuser when he speaks publicy about the incident, legal experts say.

The Republican front-runner has downplayed accusations of inappropriate conduct from two female employees when he was CEO of the National Restaurant Association from 1996 to 1999.

Cain has said he was not aware of reported settlements that gave the women money to leave the National Restaurant Association after the incidents, as first reported by Politico Sunday, or that they were bound by confidentiality agreements.

Questions remain regarding the timing of the reported agreement and whether it binds the association or Cain, who left the association over a decade ago. But Alan Dershowitz, Harvard law professor, said it would be unusual for any such agreement to prohibit only the accuser from speaking about the incident, and not the accused.

"He has spoken to the media and very well may have waived a confidentiality agreement," Dershowitz said. "It can't be the case that he can present his perspective and she can't. She is certainly entitled to answer what he has put forward in the media."

Dershowitz said he doubts the agreement contained a specific provision that prohibited the employee from speaking, even if Cain spoke publicly.

"I doubt that would be in there," Dershowitz said. "It would be very unusual and something that most lawyers would not agree to."

Joel Bennett, attorney for the former female staff, had no comment.

"In all my over 40 years of business experience … I have never sexually harassed anyone," Cain said Monday at the National Press Club. "While at the Restaurant Association, I was accused of sexual harassment – falsely accused, I might add."

One accuser reportedly received a severance package worth one year's salary, $35,000, from the National Restaurant Association, the New York Times reported.

Bennet and his client have yet to contact the National Restaurant Association to see whether it will waive the confidentiality agreement from 12 years ago when the case was settled. Although she would like to address the situation, until they waive the agreement, she will be keeping quiet, he has told the media.

"Mr. Bennett has not been in contact with the association. If we are contacted by Mr. Bennett, we will respond as appropriate," Sue Hensley, spokeswoman for the National Restaurant Association, said in a statement Tuesday.

Cain said he had difficulty recalling details connected to allegations against him and that his opponents have created a "smear campaign."

"When I was initially hit with this … I didn't recall it right away," Cain told conservative radio host Laura Ingraham Wednesday morning, adding that he was "not changing the story but trying to fill as many details as I could possibly recall."

Cain's campaign could not be immediately reached for comment.

One of the incidents allegedly took place during a work outing that involved some alcohol, the New York Times reported.

"Four people with contemporaneous knowledge of the encounter said it had taken place in the context of a work outing during which there had been heavy drinking -- a hallmark, they said, of outings with an organization that represents the hospitality industry," the Times reported.

Cain declined to say whether he would ask the association to waive the confidentiality agreeement in a television interview late Tuesday on Fox News.

"I can't answer that now because there are legal implications. If the restaurant association waives that -- I just found out about this today -- there are legal implications associated with that I am not totally familiar with yet," he told Fox's Brett Baier. "So, I can't give you a definitive answer on that until we consult with our attorneys and talk with some others."

Debra Katz, an attorney with Katz, Marshall & Banks, said it is "utterly fiction" that Herman Cain can not encourage the womens' release from the confidentiality agreement.

"Even if he is not a party or a signatory to the agreement he can speak to the National Restaurant Association and ask it to release the women," Katz said. "The Association acts through its officers and people who are its agents. He is no longer an employee there, but neither is she."

Douglas Mirell, an attorney with law firm Loeb & Loeb in Los Angeles, said it is "standard practice" that confidentiality agreements bind all parties involved. But he has seen one-sided agreements in his 31 years of practicing law, although those are "highly unusual."

Mirell said that even if Cain broke a confidentiality agreement, that does not necessarily give his accuser free license to speak to the media. Instead, it could lead to another lawsuit.

"Any breach simply gives rise to another lawsuit for breach of contract of the settlement agreement," he said.

He said sometimes settlement agreements contain "liquidated damages provisions," which pave the way for additional payment or forfeited compensation as a result of the previous agreement.

ABC News' Ariane DeVogue, Michael Falcone and Huma Khan contributed to this report.