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The challenges of enforcing Wall Street’s ‘Weinstein clauses’

Harvey Weinstein's lawyers said they'lll seek dismissal of the sexual assault charges against him. (Jefferson Siegel/AP)
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The #MeToo movement has spurred employers and investors to try to protect their bottom lines from expensive lawsuits, damaging public relations crises and other costly legal battles. Many companies have added more training to show they are addressing the issue. Investors have called on boards to hire outside workplace experts or improve the gender diversity and independence of their directors. Businesses are increasing insurance coverage that protects against expensive sexual harassment settlements.

And now, investment banks and merger and acquisitions advisers are getting their shields out, too, reports Bloomberg, advising clients to add a “Weinstein clause” or mandate a “#MeToo rep" during deal-making to protect them from sexual harassment claims. Companies are negotiating the right to claw back money if subsequent revelations damage the business, performing more “social due diligence,” or asking target firms to attest that no sexual harassment allegations have been made against top-level employees in recent years. A Bloomberg analysis found at least seven deals that included such representations this year.

The requests may be a wise step toward avoiding the purchase of what turns out to be the next Weinstein Company. And they put real consequences in place to address a practice that all too often has been swept under the rug. A recent study from researchers at UCLA and the University of Amsterdam has shown that even one sexual harassment claim can damage a company’s image -- a risk investors are understandably averse to taking.

But can buyers really eliminate the risk of sexual harassment claims from their business transactions? Perhaps the biggest challenge to that idea is that the vast majority of harassment incidents go unreported. The Equal Employment Opportunity Commission cited a study in a 2016 report that found 90 percent of individuals who say they’ve experienced harassment never take formal action, such as filing a complaint. A survey of women working in the financial services industry found that 66 percent of them did not use their companies' reporting protocols. And this year, a survey by the Society for Human Resources Management found that 76 percent of non-managers who experienced sexual harassment did not report it for several reasons, such as a fear of retaliation.

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Such a clause or attestation, said Debra Katz, a Washington-based lawyer who represents plaintiffs on sexual harassment issues, “are a good idea because it puts a sharp focus on the issue, but I’m not sure it’s going to change behavior.”

She pointed to the high numbers of unreported cases the EEOC cites, noting that while it may have improved some amid the #MeToo movement, they’re unlikely to have changed “in any meaningful way,” she said.

Moreover, she notes, if the allegations hit executives at the very top, such as CBS CEO Les Moonves, whose past behavior is now being probed following allegations of sexual misconduct from six women, they may choose to withhold information that would risk both their personal reputations and a professional deal.

“As a practical matter," Katz said, “I think anybody who’s being honest about it would have to acknowledge that it’s highly unlikely” someone in that situation would disclose it.

(Moonves has admitted he made advances that may have made women uncomfortable but denied assault or retribution; CBS told The New Yorker, which first reported the allegations, that there had been no misconduct claims or settlements against Moonves in his 24 years there.)

Another issue is that while such clauses or attestations may protect companies from past allegations, they won’t be enough to change a toxic culture that may have enabled bad behavior to be kept quiet.

“A cultural shift takes a while -- it takes strong direction from management, a clear and urgent directive and really holding people accountable and putting that type of requirement at every level,” she said. “That’s not a short-term proposition.”

Kimberly Spoerri, a partner in the mergers and acquisitions practice at Cleary Gottlieb, said that while such clauses or representations about sexual harassment claims in M&A are not yet very common, she has seen them begin to grow, starting late last year. One issue, she said, is that unlike representations companies make about, say, how well they’ve followed environmental regulations, which have specific fines that the acquiring company could recoup, the damages in a sexual harassment claim going public are much harder to appraise.

“It’s very hard to quantify the kind of loss that comes along with this,” she said. "You can go back to the seller and say ‘I have all this negative press, people are trying to distance themselves from company, I have to think about firing this person, it’s taking a real toll on the business,’ but it’s hard to say ‘this number is my loss.’ "

That’s why she says deep due diligence researching potential problems at the company are just as important as any rep or claim about past allegations. Two big red flags, she says, are claims against people at the top or a lot of people in a single department -- but having no claims at all can be concerning, too, a potential sign people don’t feel comfortable reporting issues. Some questions she advises acquiring companies to ask of the board are how often they get presentations on the issue, who’s in the room when the presentations are made, and whether or not people seem free to speak candidly about the topic.

Others say that even if they aren’t a fail-safe, the idea could prompt more people to speak out, given the big consequences at stake.

“If there’s a fear of a clawback, it sends a really strong message that sexual harassment needs to be taken more seriously,” said Stefanie Johnson, a professor at the University of Colorado, Boulder’s business school who studies bias issues. “I feel like it might really help with what we see as a lack of bystander interventions, or how many people knew about this and turned a blind eye.”

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Spoerri said she has seen “exponentially” more discussion on the issue among clients about sexual harassment, and the focus on the topic during due diligence could lead companies to focus on other cultural or “social” issues, such as bullying, bias or diversity.

Indeed, CEO Marc Benioff said last year that he would make a gender pay gap analysis part of his due diligence before acquiring companies in the future. That’s in part because his company ended up spending an additional $3 million to adjust for a pay gap that reemerged -- he had already spent $3 million to fix the issue in 2015 -- after the company went on an acquisitive streak that brought in 14 companies. At the time, Benioff told The Post that when companies acquire others, “you buy their pay practices,” and said a compensation analysis would be part of any future acquisition.

“I’ve never had to do that before,” he said. "In some ways it’s shocking. In other ways, it’s kind of like, ‘gee, why didn’t we think of that?’ "

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