The standoff between Herman Cain and his accusers offers us some interesting strategy to contemplate. The accusers are muzzled by a non-disclosure agreement they signed as a part of their settlement with the National Restaurant Association, where they worked alongside Mr. Cain. But lets walk down the tree to the node where the NDA has to be enforced.
One of the accusers has gone public with the allegation. To enforce the NDA is to admit that the NDA exists, which in turn is an admission that there was a settlement, which for all practical purposes is an admission that the allegations are true. Now, back here at the beginning of the game tree, should the accusers consider this a credible threat?
Perhaps. Because the allegations will be devastating whether or not Mr. Cain confirms the settlement. By then he would have little to lose, and at that stage the presumed penalties mandated by the NDA plus plain old retribution would be motivation enough.
(Let’s admire but ultimately ignore as unrealistic the gambit of not enforcing the NDA as a way of “proving” that there is no NDA because there was never any settlement with these accusers.)
However, it appears that the settlement is actually a contract between the NRA and the accusers. If that is the case then the decision to enforce it may not be Mr. Cain’s. Does the NRA have any credible motivation to do so?
Maybe not, but in some ways this arrangement may strengthen Mr. Cain’s position. Imagine that the accuser’s lawyer holds a press conference and publicly asks “Mr. Cain, my client is subject to a Non-Disclosure agreement arising from a sexual harrassment settlement in which you were the harasser. You deny this. Since the accusations are false you should be perfectly willing to release them from the NDA. Please prove to the American people that you are telling the truth by waiving it.”
Mr. Cain wiggles out of this one by publicly saying “Yes, I have nothing to hide. The NDA should be waived” and then by privately urging the NRA to do no such thing. The NRA can of course deny that there was any agreement and indeed the agreement probably requires them that because it presumably prohibits all parties from talking about it.