According to an unsubstantiated Internet rumor circulating since Michael Jackson's death, Jordan Chandler, the boy who in 1993 claimed to have been repeatedly molested by the pop star, has now recanted his story. Fifteen years ago, Chandler reached a $20-million settlement with Jackson, in which he agreed that neither he nor any of his family members or representatives would make any public comment about the case. Now that Jackson is dead, can Chandler speak out?
No. Jackson's settlement with Chandler, like any well-crafted confidentiality agreement, binds not only the parties themselves but also their "heirs, administrators, executors, conservators, successors, and assigns." The death of Jackson, or Chandler for that matter, would have no effect on the settlement's secrecy obligations.
Generally speaking, contractual rights extend to a party's heirs even if the contract fails to make that point explicit. Death voids a contractual obligation only if the person who died was himself central to the performance of the contract. For example, if Chandler had agreed to cut Jackson's hair every month, Jackson's death would have released Chandler from his responsibilities. (No, your hair doesn't keep growing after you die.) Chandler might argue that the confidentiality provision in the 1994 settlement was personal to Jackson—it was solely for his benefit and, now that he's gone, the obligation should be dissolved. However, Jackson's heirs could make the straightforward case that they rely on a stream of income (royalties on record sales, licensing fees, etc.) that is partially dependent on Jackson's reputation.
If the Internet rumor turns out to be true, and Chandler has, indeed, breached the settlement agreement, then Jackson's estate or heirs can sue him for breach of contract. Most agreements stipulate that if the plaintiff spills the beans, he must either return the entire settlement amount or a specified sum (usually less than the original settlement) plus legal expenses. But many people don't bother to enforce confidentiality agreements for two reasons. The vast majority of settlements (unlike Chandler's $15.3 million windfall, after legal fees) are relatively small. Most plaintiffs have relatively modest assets to start with, and they quickly become judgment proof by blowing the settlement money on everyday expenses. Also, a second lawsuit would only drag out the media circus and could make Jackson's family look as if it's trying to bully the victim. That may be why the Catholic Church has declined to sue loose-lipped victims of molestation by priests. The most common and effective use of the confidentiality agreement is to get a court order silencing potential blabbermouths before they start talking. Oprah Winfrey has used this tactic successfully against former associates who threatened to go public about their time in Oprah's employ. Violating a private confidentiality agreement is one thing; disobeying a judge is something entirely different.
Even with a cooperative plaintiff, confidentiality agreements are not particularly reliable. Courts have, at times, voided the provisions because they can be at odds with the public interest. For example, Jeffrey Wigand, the former Brown & Williamson scientist who was portrayed by Russell Crowe in The Insider, was released from his confidentiality agreement in order to publicize controversial research conducted by the tobacco industry. Confidentiality agreements that do not contravene public policy can still be superseded by a subpoena in a criminal case, a doctrine that Michael Jackson learned during his 2005 molestation trial as he watched a parade of employees reveal his secrets.
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Explainer thanks Lester Pines of Cullen Weston Pines & Bach LLP.