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SHOULD SETTLEMENTS BE CONFIDENTIAL?

Heiting & Irwin

By: Dennis R. Stout

You have sustained an injury or some form of damage, filed and prosecuted your Complaint, and have now reached a settlement with the adverse party. Upon receipt of the Settlement Agreement and Release, the defendant requests that the settlement be deemed confidential, that the nature of the settlement, its terms, and the amount be kept secret by the parties to the litigation.

With several exceptions in the state of California, defendants can demand that a settlement be confidential. Cases involving public entities (where taxpayers have a right to know the disposition of public funds), elder abuse cases, and sex offenses are an exception to the rule. Otherwise, a defendant wishing to avoid public disclosure of fault, wishing to avoid similar claims, and concerned that knowledge of the settlement amount would belie a public denial of wrongdoing, may demand and include a confidentiality clause within the Settlement Agreement and Release.

Although there are strong arguments against confidentiality in Settlement Agreement and Release documents relating to injuries, there is no outright prohibition for the inclusion of such terms within a settlement agreement. As an injured party/plaintiff settling a case, one should not only aware of, but understand the provisions contained within the Settlement Agreement and Release that would subject the plaintiff to a penalty in the event of disclosure. The plaintiff should carefully read, review, consider, and understand the language of the Settlement Agreement and Release and any sanction for disclosure contrary to its terms. Reliance upon your counsel to explain the confidentiality clauses, ramifications and potential sanctions is an important conclusion to the litigation process. As with all stages of your injury and damage claim, confidence in and reliance upon your chosen counsel is of the upmost importance. All of the attorneys at Heiting and Irwin have handled litigated cases and are familiar with the importance of the terms and conditions contained within the Settlement Agreement and Release documents. It is our goal to assist you in all stages, and most importantly, that the settlement of your claim should not result in any sanction to you, should the disclosure of its terms be beyond your control.

The attorneys at Heiting and Irwin are available to discuss your case not only from its beginning, but to assist you in the completion of your case, as well, including review and evaluation of settlement documents. Experience in all aspects of litigation is important, and that is what all attorneys at Heiting and Irwin offer to its clients.

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