Are Confidentiality Contracts Enforceable? Tiger Woods, Elin Nordegren, and Paying for Silence

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5 Responses

  1. Edward Still says:

    Shelley v. Kraemer ignored the “duty-defining power” distinction you made. Why should courts look to state action (through judicial action) in the case of racial discrimination, but use duty-defining power in First Amendment cases?

  2. Daniel Solove says:


    We address Shelley at length in the article — Part III.B.4. We also discuss state action too. It’s too difficult to sum it all up here, but we definitely address your question.


  3. Eric T. says:

    A side issue to that confidentiality agreement: It might make a non-taxable divorce settlement partially taxable, because part of the payment is not for the property but for the silence.

    At least that was the result in Amos v. Commissioner of the IRS, where Denis Rodman kicked a cameraman in the groin during a game, and then settled pre-suit for 200K. The IRS ruled that 40% of that money was not for injury, but for silence.