What is the recent settlement?
Under the proposed settlement terms, the Hollywood producer will not have to admit to wrongdoing. The settlement money will largely be paid by insurance companies representing the Weinstein Co., as part of its bankruptcy proceedings.
Weinstein and his associates will also be paid $12 million from the settlement to cover a portion of their legal costs — a payment that critics have called “shameful” — and board members will receive blanket immunity from future liability, attorneys said.
The agreement is the result of a long, complex negotiation among Weinstein, his former board members, creditors, insurers, his accusers and the New York attorney general’s office.
Two years ago, an investor group almost bought the assets of the Weinstein Co., then near bankruptcy, in a deal that would have included a victims’ compensation fund worth up to $90 million. That deal fell through when then-New York Attorney General Eric T. Schneiderman filed a lawsuit against the Weinstein brothers and the studio for exploiting its employees and failing to protect the accusers.
Although the tentative settlement reached Wednesday is a fraction of what the victims could have received in the 2017 deal, it would resolve most of the civil lawsuits alleging sexual misconduct filed since the New Yorker and the New York Times published the first articles accusing Weinstein of sexual harassment and abuse. The settlement also covers a class action that accused him and the board of his former film company of a pattern of sexual misconduct.
What happens next?
In order for the proposed settlement to move forward, two courts must first agree to its terms: a bankruptcy court, which has jurisdiction over the Weinstein Co., and a New York federal court.
It is unclear how many alleged victims will participate in the settlement, but at least two accusers — actress Wedil David and Alexandra Canosa, a television producer who once worked for Weinstein — have turned it down and plan to challenge the proposed deal.
Attorney Douglas Wigdor, who represents three of Weinstein’s accusers, told The Post that the settlement “is not a fair settlement for anyone.”
“It precludes further liability for other women not participating in the settlement, like my client,” Wigdor said. “And for such a large sum to pay defense costs for people who were the enablers is really unprecedented.”
It is unusual to settle a civil claim before a criminal trial.
Attorneys typically put a hold on civil cases that are filed against criminal defendants until the criminal proceedings are complete. It works in the plaintiff’s favor to wait, because once a prosecution is over, a criminal defendant has no Fifth-Amendment right against self-incrimination, meaning lawyers can depose and cross examine the accused.
If a civil settlement is reached before the criminal case is complete, it could help the defense. Defense attorneys could question accusers’ motives for alleging abuse and argue they were driven by the possibility of millions of dollars.
Does the tentative settlement preclude a criminal prosecution?
Weinstein’s criminal case, which is set to begin Jan. 6 in Manhattan Supreme Court, will proceed as planned.
The criminal charges stem from allegations of sexual assault in 2006 and the rape of another woman in 2013.
Actress Annabella Sciorra is also expected to take the stand against him. The “Sopranos” star accused Weinstein of raping her at her Gramercy Park apartment during the 1993-1994 winter; New York’s statute of limitations bars the district attorney from charging Weinstein over Sciorra’s allegations, but prosecutors say her testimony could help demonstrate a pattern of behavior by Weinstein — which is a necessary element for prosecutors to prove some of the counts Weinstein is charged with.
The judge in the criminal case will also permit trial testimony from three witnesses alleging uncharged crimes, according to documents released by prosecutors. Under a New York evidentiary rule called Molineux, evidence of similar past behavior by Weinstein can be introduced to establish a criminal pattern, even if the act was not included in the indictment.
Weinstein, whose alleged behavior ignited the #MeToo movement, has been accused of misconduct by dozens of women since 2017. Yet the scope of his upcoming criminal trial is narrow.
Some accusers opted not to participate, some of the alleged conduct did not rise to criminal acts, and some of it fell outside the statute of limitations. So prosecutors will focus on the stories of two alleged victims — one assault accusation from 2006 and one rape accusation from 2013.
Critics of Wednesday’s proposed agreement called it a “get out of jail free” card. While that is far from correct — if convicted, Weinstein faces a possible life sentence — his case does highlight some shortcomings of the legal system and its handling of alleged sex crimes.