Court Discloses Speech-Restrictive Barley House Settlement Agreement

I'm delighted to report that the District Court agreed with our position.

I blogged recently (see here and here) about the contempt proceedings in the Barley House controversy, where YouTube personality FaZe Banks (Richard Bengtson) was facing a speech-restrictive court order based on a secret settlement agreement, and the threat of contempt sanctions for posting a video that allegedly violated that agreement. With the help of Cleveland lawyer Patrick Kabat (Chandra Law), I moved to intervene to get the agreement disclosed -- and I'm delighted to report that the District Court just agreed with us, and filed the agreement in the publicly available court records (here):

[B]ecause Plaintiffs asked the Court to enforce the confidential settlement agreement, the agreement was discussed in detail during the contempt proceeding, and the parties failed to cite a single case in opposition to the Motion of Eugene Volokh to Intervene and Gain Access to a Judicial Document, nor did they indicate that disclosure of the agreement would harm them in any way, the Court hereby GRANTS the Motion (Doc #: 29). The Clerk of Court shall file the agreement as an exhibit to this Order.

I'm off to a meeting right now, but I hope to read the agreement shortly, and blog about its contents to the extent that they shed light on the broader free speech dispute.

The court also declined to impose contempt sanctions on Bengtson, because it concluded that he was advised by his lawyer that his video was consistent with the agreement.

Comments

[Scarecrow Repair & Chippering]

Nice. You pretty smart fella 🙂

[Derrick M. King]

First, congratulations on fighting to have the agreement released. It shows indeed that FaZe Banks did not violate the agreement. The judge did the correct thing in not holding him in contempt.

As someone who saw the video when it was first released, it was clear that Barley House had the video taken down only because they wanted to control the message. FaZe Banks followed the terms of the agreement to a T.

[Eidde]

Great going, you rubbed the grime off the windows and let in the light!

[FlameCCT]

Perhaps the court should impose sanctions on his lawyer since it was his crappy advise?

[Paul Alan Levy]

Eugene's having litigated to compel disclosure of the agreement that the judge is enforcing is exceptionally important. But damn, that non-disparagement agreement is pretty specific.

Although I have not seen the video, considering (1) the fact that the agreement says that D can post a Vlog covering a discrete number of specific subjects, and "limited to" those subjects, specifying the point of view to be expressed on many of them, (2) the express provision that defendants shall NOT not create or disseminate any other video on the subjects covered by the agreement, and (3) the fact that the Vlog that defendant posted after entering the agreement was 25 minutes long and apparently included a lengthy pre-created section, I would not be surprised to learn that the judge had a sound basis for concluding that the agreement was violated.

Whether the D were wise to enter the agreement is one thing. And certainly I would argue that an injunction against expression, especially a preliminary injunction, could not have been entered in the first place. But a non-disparagement agreement entered in partial settlement of a piece of litigation is likely enforceable.