R. Kyle Alagood

Gadfly. Writer. Activist. Transparency Advocate. Proud Former Food Stamp & Medicaid Kid. Believer in Barbara Jordan's America. TBD.

Secret Settlements, Hidden Dangers

Confidentiality clauses in settlement agreements have muzzled virtually every plaintiff in hydraulic fracturing (“fracking”) suits, aided the Catholic Church’s alleged child molestation cover-ups, and helped shield manufacturers from public scrutiny of hundreds of deaths and injuries stemming from tire failures. Why then is secrecy virtually always a condition of settlement, and what can the legal system to do solve the dilemma?

Settlement Confidentiality: A “Fracking” Disaster for Public Health and Safety

45 Environmental Law Reporter 10459 (2015)

Downloadable via SSRN.

Despite secrecy’s risks and a trend in U.S. law and policy toward openness and disclosure of potential public safety dangers, the confidentiality clause remains a staple for civil settlements. Whereas other scholarship focuses on whether to continue permitting settlement confidentiality or proposes changes that restrict court-approved confidentiality clauses, this article (1) explores conventional arguments for and against settlement confidentiality, using fracking claims as a case study; (2) concludes courts must reject the secrecy-as-bargain status quo but accept the reality that confidentiality is sometimes necessary; and (3) proposes a uniform rule courts should adopt to regulate, when public interest requires, confidentiality clauses in both court-approved settlements and private settlements courts are later asked to enforce.

Image courtesy of david pacey, via Flickr (cropped to fit)

bargainconfidentialityconfidentiality clausecontractenvironmentenvironmental lawEnvironmental Protection AgencyEPAFirst Amendmentfrackfrackinggashydraulic fracturinglitigationnatural gasnatural resourcesopennesspolicysecrecysettlesettlementtorttransparency

R. Kyle • April 30, 2015

Previous Post

Next Post