NDA and suing (Easy answer)

[alotomeat]

What is the name of your state (only U.S. law)? GA

Our old builder was/is a crook. Last summer, we filed a suit against him. We settled out of court and signed a NDA. At the time, we were not aware of criminal activity.

Within the last couple of weeks, he has been arrested for theft by conversion, theft by deception and 1st degree forgery. He has taken over $300,000 from one family alone, and he's leaving five homes unfinished with many unpaid bills. (We were lucky: he only got us for $200,000. We finished our house on our own and we're in bad financial shape.) These other homes were being built while ours was, so there might be a mixture of monies.

Because he will now have a criminal record (assuming he is found guilty), will we be able to sue? I would guess that an NDA assumes that there is no criminal activity, and if there were criminal activity, the NDA could be voided out.

We don't want to be paying for this man's dishonesty for the rest of our lives.

 

[dolebot]

The more important bit is this:

We settled out of court

Once a cause of action is settled that lawsuit cannot be brought again. That is because any lawyer who managed to stay awake in law school will include a waiver of any and all past and future claims on the issues in the case. Also if you had won the suit instead of just settling, something exists in common law called res judica, or more specifically these days, collateral estoppel. Its not the same as double jeopardy (5th/14th amendment as those apply to criminal cases), but its the same idea.

You can't sue someone twice for the same thing.

I don't think an NDA is automatically voided because one of the parties was involved in criminal activity, even involving the issues directly related to that NDA. Look through the NDA, but I don't believe you'll find a provision for that. Otherwise I believe a subpeona or similar instrument would be required to break that agreement. I don't think it would be broken by discussing the case with law enforcement, but check it out.