Gary Burger on a $750,000 Settlement and Confidentiality
I settled a birth injury case for $750,000 recently.
Rather than discussing the details of the case, I thought I would discuss confidentiality provisions that surround these types of cases.
Agreeing to a Confidentiality Provision
The first is, should you agree to a confidentiality provision? These provisions make the amount of the settlement and sometimes the facts of the underlying claim, confidential.
I will not do confidentially provisions in routine cases. However, in employment discrimination and medical malpractice cases, and in higher figure cases, confidentially provisions are the norm. Typically, those cases do not settle without them.
Arguments in favor of confidentially is that an insurer or defendant will often require confidentially as a condition of settlement. This protects them from publicity and any negative effect of the allegations of the lawsuit and protects their public image.
Confidentially also has a hidden benefit for the plaintiff as they often do not want to disclose or share the details of their finances with friends, family, or the public. So, a client may want confidentiality and/or not object to it if the settlement amount is enough.
However, the public and our community have an interest in knowing the value of these cases. If there is a bad actor or someone routinely committing negligence and hurting or killing people, we need to know. Disclosure of settlement amounts along with the facts and details of the settlements promote safety in the community.
And someone who gets injured a week or year from now wants to know what other cases settled for to try to determine the value of those or what would be a fair settlement in their case rather than just having to try the case.
My general rule is that I do not agree to confidently in most cases. I get in disagreements with the opposing party on confidentially and try to stick to my guns on that. I think it is really in the interest of the public to know when a tortfeasor pays money to settle a claim. Plaintiffs have a hard enough burden to prove and win their case without having additional confidentially hampering them.
Consequences of Confidentiality
Further, we have seen, glaringly, what confidentiality in the sexual assault context can foster.
High profile and rich serial sexual harassers and abusers can get away with terrible things for decades without being called to account. They or their companies pay big money for silence from those who bring claims against them.
Then the assault continue on unknowing victims. Having these things public warns the next victim and dissuades bad conduct. A company is not going to keep manufacturing a defective product or continue to employ a serial sexual assaulter or harasser if that knowledge was public.
If you are going to agree to confidentiality, then what kind? just the amount of the settlement or the underlying facts? mutual nondisparagement provisions? If there’s a breach, is it the whole amount of the settlement or a portion?
Some lawyers agree to confidentially on most or all cases and most agree to confidentially on something. If a defendant is going to offer and pay enough money for confidentially, they can get what they pay for. And if the client understands and agrees, lawyers should not get in the way.
Here’s a podcast episode where we discuss high damage cases.