Jump to Navigation
Jump to Content

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

May 2015

Citation: 45 ELR 10459

Issue: 5

Author: R. Kyle Alagood

Confidentiality clauses in settlement agreements have become so commonplace that they seem like benign contractual terms. In reality, however, confidentiality clauses have formidable power to silence even the most outspoken plaintiffs, and to shield repeat environmental defendants from public scrutiny. This Article examines the effects of settlement confidentiality in the context of claims related to hydraulic fracturing, and recommends that courts align settlement bargaining with U.S. law and policy trends toward openness. It proposes a rule to uniformly regulate confidentiality clauses in the public interest, by creating a rebuttable presumption against secrecy where a court anticipates “strongly correlated culpability” between a given case and other existing or future cases.

R. Kyle Alagood is a 2015 J.D./D.C.L. Candidate at Louisiana State University Law Center.

Download Article >>>