Discussions about maintaining settlement agreements in confidence always come late in the day (or evening!)  The parties are tired, the major deal points are decided.  Then someone raises confidentiality. 

For people and small businesses who are not familiar with boiler-plate confidentiality provisions, the discussion of who they can and cannot tell about the settlement of their lawsuit is always a difficult one and sometimes threatens to derail the settlement altogether.

I've often heard counsel say, "whattaya gonna do if someone breaches it?  It's meaningless, really," as they talk their clients into accepting a deal point no one had ever discussed with them before. 

"Sure, you can tell your husband," they say, but  not your employees, next door neighbor or third cousins."

I have to say that in 25 years of legal and three years of neutral practice, I've never seen anyone try to enforce the confidentiality provision contained in a settlement agreement.  Because I generally don't study that which I don't need to use, I've never looked into the question of enforcement or damages for breach.

On a slow day, I read my blog's statistics and check out who's checking me out.  Today I noticed a new law firm stumbling over my site -- ulmer berne llp of Cincinnati, Ohio.   When purusing law firm's web sites, I generally check out the articles buried there and sometimes bring them into the light of day for the benefit of the rest of us.

Today I found Jennifer Snyder Heis' excellent article on the enforcement of confidentiality clauses in settlement agreements and the damages, if any, that might be awarded for their breach. 

The article is entitled Confidentiality of Settlement Agreements.  It's worth a read before you head off to a settlement conference if you think you might be asking (or refusing to provide) a provision that the parties keep the settlement in confidence.

Thanks Jennifer.