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)
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)