What Does Karen McDougal’s Non-Disclosure Agreement Lawsuit Have to Do with Florida Probate?

Uncategorized • Mar 21, 2018

On March 20th, 2018, former Playboy Playmate Karen McDougal filed a lawsuit in California regarding a contract she signed which evidently prevents her from speaking about her relationship with President Donald Trump. Can a court “void” a nondisclosure agreement or provision in a contract? And why should Florida probate lawyers care?

Click here to view a copy of Karen McDougal’s lawsuit.
In Florida, probate lawsuits are generally required to go to mediation, before going to trial.
Since a lot of probate cases settle, this is often accomplished with a written contract: often called a settlement agreement or Florida Mediation Agreement or Mediation Settlement Agreement.
Sometimes, parties to a probate lawsuit that settled their case on one day, then, a couple of days later, get cold feet, or want out of a contract which they signed.
Can you get out of a probate settlement agreement?
Well, consider reading the Florida appellate opinion in Pierce v Pierce, 128 So. 3d 204 (Fla. 3rd DCA, 2013) where Florida’s 1st District Court of Appeal tells you what a court will consider if you want to disregard a settlement agreement.
Consider also reading the Estate of Stern case, from the 3rd DCA in 2015: 2015 WL 5603469.
So, what does Karen McDougal and Donald Trump have to do with probate settlement agreements? Well……
Appellate courts are reluctant to re-write contracts and have held repeatedly stated that the freedom to contract includes the right to make a bad deal! See Barakat v. Broward County Housing Auth., 771 So. 2d 1193 (Fla. 4th DCA, 2000 , rehear. den. 12/14/200)
And, at least in Florida, a party to a contract is assumed to have read it ! See the Addison case 48 So. 3d 951 (Fla. 3rd DCA 2010).
A party to a Florida contract is bound by the contract that they sign! See the Johnson, Pope case, 67 So.3d 315 (Fla. 2nd DCA, 2011)
Non-disclosure agreements, and other so called “restrictive covenants,” are incorporated into contracts, and upheld, every day. In the probate context, parties sometimes want a provision which says you want talk “bad” about another party. There may or may not be a confidentiality agreement, which includes non-disclosure provisions. So, a settlement agreement in Florida can be a non-disclosure agreement.
What’s important for probate lawyers is something to consider when writing and negotiating the contract or settlement agreement: what are the damages or penalties if someone breaks the contract or non-disclosure agreement?
And, remember, non-disclosure agreements in the employment context should comply with Fla. Stat. ∫ 542.335.
Indeed, that is the essence of a contract: you get something by giving something. Such “consideration” can include silence or an express written agreement not to say something, talk about, or comment about a particular subject matter. We give up our unrestricted rights or freedoms every day to accept something in its place: such as money.
The only exceptions are if such contracts or “NDA’s” are somehow against public policy, or the non-disclosure parameters are terribly over-reaching or overly broad.
But courts are reluctant to re-write contracts: ESPECIALLY when the parties each had their own lawyers. And one party received money.
Courts don’t like “buyer’s remorse” or “Monday morning quarterbacking.” To permit people to re-write contracts (other than to correct or reform a mistake), or to “get out of” contracts, diminishes our legal process, the essence of a contract, and the seriousness which should be attributed to “doing a deal.” To do otherwise would be to render a contract or promise worthless.
The Karen McDougal case is unique—she accuses her former lawyer of colluding with the National Enquirer (Defendant American Media). It remains to be seen whether that allegation, alone, will permit a court to “void” the non-disclosure agreement, for which she was paid. But if the allegations about her former attorney are true, that attorney could be the subject of a lawsuit.
One final note on the McDougal case: in Florida, there is an implied duty of good faith and fair dealing in every contract. If either party is not acting “fairly”, that may be a way to “get out of” a contract if you can demonstrate that a particular “breach” or wrong, occurred.