By Gilat Juli Bachar.
Most disputes in the United States settle, and often behind closed doors. In particular, settlement agreements with nondisclosure clauses (“confidential settlements”) have been debated for years in the products liability context, as such settlements might conceal information about hazards that endanger public health and safety. Debates gave rise to a series of state-level “sunshine-in-litigation” laws (“sunshine laws”) requiring judges to consider the public interest before approving a confidential settlement. More recently, in December 2022, President Biden signed into law the Speak Out Act, which limits judicial enforcement of sexual harassment-related NDAs. This Act marked the culmination of law reform efforts following the #MeToo movement in over a dozen states aimed at restricting NDAs that cover up sexual misconduct. At the same time, this policy debate grapples with the argument that some NDAs are desirable or necessary for a well-functioning civil justice system. Full Article.