Why Didn’t Johnny Depp Sue Amber Heard for Breaching Her NDA?

For the past month, jurors in Virginia have been witness to a tabloid spectacle. Johnny Depp and Amber Heard have taken turns revealing every detail of their four-year relationship, including serious allegations of bloody violence and sexual assault, as well as merely lurid accounts of screaming fights, promiscuous drug use, and bowel movements. Heard will retake the stand on Monday as she seeks to persuade the jury that Depp physically abused her. The trial will last until early June.

This is an outcome that teams of lawyers assiduously tried to avoid in 2016, when they crafted the couple’s divorce settlement. Under the terms, Heard was paid $7 million and both parties agreed to non-disparagement and confidentiality clauses. One purpose of the agreement was to achieve “the mutual wish and desire of the parties to resolve any and all issues regarding Petitioner’s claims of domestic violence.”

Non-disclosure agreements have gotten a bad name in the #MeToo era, as more has been learned about how they can be used to cover up systemic abuses. California has gone so far as to prohibit them in cases of sexual harassment and discrimination. But they can also bring finality to messy situations and allow both sides to go their separate ways in peace. If the NDA in the Depp-Heard divorce had held up, a jury would not have to determine which one is telling the truth about a relationship that ended six years ago.

In the agreement, Depp and Heard promised not to make any “derogatory, disparaging, critical or accusatory statements, either directly or indirectly, express or implied” about each other.

Heard arguably violated that provision when she published her Dec. 18, 2018 op-ed in the Washington Post. Though she did not mention Depp by name, she clearly alluded to her past allegations of domestic violence, and said she had “felt the full force of our culture’s wrath for women who speak out.”

Depp is now suing Heard over that column. But he is not suing her for breaching the settlement agreement. Instead, he is suing for defamation, which requires him not only to prove that Heard disparaged him, but also that she fabricated her allegations. That is a much higher bar, and several legal experts have expressed doubt that he will be able to clear it.

In addition to Heard’s testimony — which has gone into graphic detail of several alleged assaults — jurors have also seen contemporaneous therapy notes, pictures of a bruise on Heard’s face, and text messages from Depp, including one in which he admitted that he “fucked up and went too far in our fight.” The couple’s therapist — called by Depp’s lawyers — also testified that they engaged in “mutual abuse,” and that “she gave as good as she got,” which, if believed, would not help Depp’s case.

A source close to Depp’s side said that he had a number of legal paths available to him, but declined to speculate on why he chose to sue for defamation, rather than for breaching the settlement.

Lee Berlik, a Virginia defamation lawyer who has written about the case, noted that Depp would be able to recover a higher damages award for defamation than for breach of the contract. Depp is seeking $50 million — claiming that he lost out on a sixth “Pirates of the Caribbean” film because of the op-ed. Berlik also suggested that the op-ed might have been vague enough so as not to breach the agreement.

Another factor is that the settlement agreement included an arbitration provision, which would have kept the dispute confidential. Any claim for breach would be heard by Louis Meisinger, a retired judge who has served as a mediator in a number of high-profile matters, including a sexual misconduct lawsuit against James Franco.

Instead, Depp sued for defamation in civil court in Virginia, guaranteeing a public airing of all of the couple’s allegations. The trial is now being broadcast live on YouTube and on Court TV, and the result will be determined as much by its influence on public opinion as by the jury’s verdict.

Heard’s side declined to comment for this story. But her lawyers have stressed during the trial that she relied on legal advice when she published the op-ed. That advice would have involved considerations of both defamation and breach of the settlement agreement, and she would have been prepared to defend herself either way.

Her lawyers had insisted that she remove a line from the op-ed saying that she obtained a “temporary restraining order from my then-husband” — a clear reference to the couple’s divorce proceedings, which were covered by the confidentiality provision. Heard wanted the reference in the final copy, according to testimony from the general counsel of the ACLU, but she ultimately heeded her lawyers’ advice and it was taken out.

The final draft stated only that Heard became “a public figure representing domestic abuse.” If Heard were on trial for breaching the agreement, her lawyers would doubtless argue that the op-ed was not about the couple’s marriage or divorce, or about her domestic violence allegations, but merely about the public reaction to those allegations.

But the non-disparagement language is quite broad, covering even “implied” negative statements. By situating her experience in the context of the #MeToo movement, Heard arguably would have been accusing Depp all over again. A Virginia judge, Bruce White, ruled in 2020 that the op-ed implied a potentially defamatory meaning — namely, that Depp abused Heard — even though it did not explicitly say that, and it’s possible to imagine an arbitrator reaching the same conclusion in a claim for breach.

Heard’s lawyers are now attempting to persuade the jury that the op-ed did not imply a defamatory meaning, but merely made true statements about the backlash that Heard faced. If the jurors agree with that, they would not have to reach the question of who is telling the truth in order to reject Depp’s suit. As a fallback, though, they are also arguing that Heard’s abuse claims are true. If the jury agrees, or decides that Depp hasn’t proved they are false by a preponderance of evidence, then Heard would win as well.

In the divorce settlement, the couple’s attorneys found a way to finesse these questions without clearly resolving the truth of the matter. The terms included a joint statement that would be released on the couple’s behalf: “Neither party has made false accusations for financial gain. There was never any intent of physical or emotional harm.” The statement left open the possibility that Depp had been violent (conceding only that there was no “intent”) and also that Heard was lying about it (conceding only that she hadn’t lied for “financial gain”).

On the witness stand, Depp said the statement was written by “lawyers” and made clear he wasn’t happy with it.

“The advice I was given was to not fight it,” he said. “I wasn’t given much of a choice.”

The final line of the statement now reads like it was written in a different universe.

“There will be no further public statements about this matter.”

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