Washington, DC – Today, Senator Sheldon Whitehouse (D-RI) reintroduced legislation to help protect public health and safety by limiting the use of confidentiality agreements in lawsuits involving health hazards. The Safety Over Secrecy Act would curtail the ability of big corporations to demand as a condition of settlements that plaintiffs never disclose their experiences.
“While confidentiality agreements can serve perfectly legitimate purposes, they can also hide information needed to keep the public safe,” said Whitehouse. “Right now, big corporations can wield their expensive legal teams to push confidentiality agreements that bar plaintiffs from telling the truth about what happened to them. That keeps the public in the dark about dangers like the faulty part that caused a car accident, the asbestos in walls, or the industrial chemical that seeped into a water supply. This bill would make clear that judges can consider whether important public health and safety information should be kept under wraps.”
Under current law, judges are not specifically required to consider the public interest when determining the enforceability of confidentiality agreements. Natural gas companies, for example, facing lawsuits from citizens who claim their water has been contaminated by the extraction process, may require plaintiffs to keep details of their cases secret in exchange for a cash settlement. In cases involving hazards to public health and safety—and only in those cases—the bill would require judges to balance a party’s specific interest in confidentiality against the public interest in disclosure of information when approving or enforcing confidentiality agreements.
The bill would not prohibit secrecy agreements across the board. Such agreements are used for purposes including protecting trade secrets and other confidential company and personal information. The limited scope of the bill will ensure judges and courts are not unduly burdened.
Over the past two decades, court-approved confidentiality has, in instances, hidden serious public health and safety dangers from the public. Among other things, such cases have involved chemicals used in hydraulic fracturing (or “fracking”), asbestos, defective auto components, faulty medical devices, and “adverse incidents” from drugs.
Confidentiality agreements involving fracking have garnered particular attention in recent years as the natural gas industry has expanded the use of the technique. According to recently published research, fracking has been linked to numerous public health risks, including premature birth and high-risk pregnancies, asthma, and contaminated drinking water.
In one high-profile case, a family that moved into a new home in southern Pennsylvania—where fracking has boomed in recent years—began experiencing headaches, nosebleeds, and burning eyes. After three years and numerous complaints, the family brought suit against companies conducting fracking operations in their area. The family eventually settled with the companies for enough money to move off the property and, in exchange, signed a confidentiality agreement. The case gained international attention when the Pittsburg Gazette obtained an unsealed settlement transcript two years later and discovered that the family’s seven and ten year-old children had been gagged for life along with their parents under the confidentiality agreement.
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