What can I do if there’s a secret settlement in a case I’m reporting on?

From the Fall 2000 issue of The News Media & The Law, page 4.

Most lawsuits settle, and most settlement agreements contain confidentiality provisions. Thus, it is likely that a journalist who follows lawsuits will be confronted with a secret settlement at one time or another.

Although it is difficult to fight secret settlements, there are steps reporters can take to improve the chances of learning the terms of the settlement or other relevant information.

First, try to obtain as much background information as possible. Ask the lawyers for any information they can provide. Although it is unlikely they will provide the settlement documents, they might provide you with pleadings or names of witnesses. Also, if you are considering a challenge to a secret settlement in court, it would be preferable to first ask the lawyers why the settlement is confidential to see whether they have any legitimate arguments.

You may attempt to obtain information from other sources. Check with any applicable government agencies to see whether they have information about the lawsuit, similar lawsuits or complaints about the product at issue. For instance, the FDA may have information concerning pharmaceutical complaints, and the National Highway and Transportation Safety Administration may have information about automobiles. Also check with private agencies like the Better Business Bureau or professional licensing boards to see whether they have pertinent information. State Attorney General offices, or those offices’ consumer affairs divisions, also receive consumer complaints. Other good sources may be family or friends of parties to the suit or former employees of the company (if they are not bound by confidentiality agreements).

If you have time and access, look for similar lawsuits in other states or counties. Those suits may provide valuable information about a common defendant, or the attorneys may be more willing to help if they are not in a settlement phase themselves.

If the settlement documents themselves are important to you, you will have to intervene in the case to ask the judge to compel production of the settlement agreement. Your ability to successfully intervene will depend on state laws and local rules; it is therefore necessary to check your state’s laws and local court rules before action is taken. You may have to intervene at the time the settlement is made, so it is imperative that you take action quickly.

You will also have to weigh whether it is worth your time and money to challenge the secrecy order. Most states do not have a clear policy regarding media intervention to challenge secret settlements, and therefore, an intervention will probably not be a “slam dunk.” It will take time, money, and patience, with no promise of a positive result.

If you wish to take legal action, it is best to have an attorney, as a lawyer will be in a better position to navigate potentially complex procedural rules.

As always, the Reporters Committee is available to assist journalists and media lawyers and can be reached at 1-800-336-4243.