The Typical in the Unusual: Non-Disparagement Clauses in the Cooley Law School Layoffs

Last week, I wrote about an unusual non-disparagement provision a hotel in upstate New York sought to impose on its guests, under which newlyweds could be fined $500 if any of their guests wrote negative reviews of the hotel on Yelp. Today we have an example of a more typical non-disparagement clause: Western Michigan University Thomas M. Cooley School of Law is reportedly conducting massive layoffs of faculty and conditioning severance packages on agreements not to disparage the school or divulge details about the firings. Some sources say the school may be letting go 50-70% of its faculty.

The inclusion of the non-disparagement and confidentiality provisions here may seem like overkill, but it’s not.

Everyone following legal academia knows these are tough times in the sector in general, arguably the worst in history. Many schools are offering buyouts or taking other significant steps to manage costs. In addition, it’s no surprise Cooley in particular is having trouble. Their enrollment has cratered in recent years. Finally, Cooley does not have a sterling reputation as it is (presumably this played a role in its recent decision to purchase the rights to use Western Michigan’s name). The for-profit chain of law schools, whose five campuses collectively form the largest law school in the nation, is often used in casual conversation as shorthand for the things people think need reforming in legal education and student lending. Its graduates have perhaps the most dismal employment outcomes in law.

Despite these factors, Cooley, unsurprisingly, appears to want to manage the story about the scope and nature of any personnel changes. Said one outgoing faculty member who spoke on condition of anonymity:

“We have non-disparagement and confidentiality clauses upon which our severance packages hinge so I cannot say anything on the record and very little off the record other than to confirm that the cuts to faculty and staff are significant and I am among those in that category. . . Plus I am really, really pissed.”

Unfortunate though these circumstances are, this is the more usual situation where non-disparagement clauses are used: a settlement where part of what is being “settled” is the right to publicly air grievances against the other side. Apart from the Union Street Guest House’s policy of fining newlyweds for their guests’ Yelp reviews, I am not aware of an example of public accommodation being conditioned on non-disparagement, let alone conditioned on third parties not disparaging a contract party. The use of non-disparagement clauses in an employee buyout like the one Cooley appears to be undertaking is a standard employment practice and a far more typical use of such clauses.


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