How can I avoid or get the least restrictive possible confidentiality clause in a settlement?

Asked almost 5 years ago - Orlando, FL

I am Defendant in a lawsuit. My transgression was minor & involuntary compared to the unlawful way they have operated for years. After filing my Answer & Counterclaims, Plaintiff asked to settle. We are nearing agreement but I'm uncomfortable w/Confidentiality Clause, which states we'll not disclose the terms to any party. I do not want to be trapped where I can not discuss this, for ex., w/my partner, family, friends, therapist, support group, or alright, another person or people in my position relative to Plaintiff. There's another non-disparagement part with which I'm more ok, but Plaintiff is a bad actor & people need protection. Please no advice to weigh holding out for this clause w/loss of settlement. I'm looking for specific wording to wriggle free from this straitjacket.

Attorney answers (2)

  1. Christopher J. Coleman

    Contributor Level 10

    Answered . Your question is interesting in that you are seeking advice as to how you can "agree" but not really agree and get what you want while the other party does not get what they bargain for. Your final statement that you would like "specific wording to wriggle free" shows you do not want to enter into this agreement if it contains this sort of confidentiality clause. While it seems you do not want to hear it from your question your clearly understand that this issue is the confidentiality agreement a deal breaker for you. Do not enter into an agreement looking for a way out. If you want to discuss with parties, then negotiate that provision, not attempting to wordsmith your way out of compliance, it will likely result in additional litigation.

    This situation is complex and no legal opinion can be expressed concerning the outcome of any litigation or planning without a full consideration of the facts and legal research. This answer is given solely as general information and is not a substitute for a legal consultation, nor does it create an attorney-client relationship between you and either the writer or his law firm.

  2. John David Campo

    Contributor Level 11

    Answered . I agree with my colleague. If you have no intention of honoring your proposed settlement agreement to remain "confidential," then do not agree to it. I do not believe that I know of any attorneys that would intentional draft a clause so that their client could "wriggle free" from its terms.

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