NDAs - the more ordinary kind

[Nick Odell]

Most NDAs, we are told, concern work on patent applications, using
sensitive information gained with one employer for the benefit of
another and reaching an agreement with a bank, hospital, business,
government etc where the organisation doesn't want to admit liability
and doesn't want the rest of the world to know the terms of any settlement.

Am I right in thinking that in a straighforward civil claim, if the
plaintiff refuses an out-of-court settlement and insists on going
through the court, if the court actually awards a lower sum, the costs
fall to the plaintiff because it is reasoned, all those costs could have
been avoided by accepting the settlement previously offered?

What if the plaintiff refuses a settlement, not for monetary reasons but
because they do not wish to be bound by the NDA bundled up with it? Will
the plaintiff, if they win, still be liable for the other party's costs
if the court awards a lower sum? Is this the reason why so many people
seem willing to sign NDAs rather than have their day in court?

Nick

[R. Mark Clayton]

Generally speaking if you breach an NDA (e.g. on new computer chips as I have signed in the past) then you will never get 'preliminary information' again.

Examples would be motoring journalists getting advanced test drives in soon to be released new cars etc.

[Roland Perry]

In message <pr175m$cs2$1...@dont-email.me>, at 09:21:09 on Sat, 27 Oct
2018, Nick Odell <ni...@themusicworkshop.plus.com> remarked:

>Most NDAs, we are told, concern work on patent applications, using
>sensitive information gained with one employer for the benefit of
>another

Those are often signed during the employee's induction process.

>and reaching an agreement with a bank, hospital, business, government
>etc where the organisation doesn't want to admit liability and doesn't
>want the rest of the world to know the terms of any settlement.

Those don't usually involve employees (rather than random members of the
public).
--
Roland Perry

[Phi]

"Nick Odell" <ni...@themusicworkshop.plus.com> wrote in message
news:pr175m$cs2$1...@dont-email.me...

I see that change.org has a petition going the rounds to stop non-disclosure
agreements being used for non-commercial purposes.

[Nick Odell]

Sorry, I mentioned commercial NDAs because they were amongst "other
sorts" of agreement from reputational ones such as the one currently in
the news. I really wanted to focus on the financial ones where getting
due compensation depends on signing an NDA.

"Whoops! We took the wrong kidney out! Here's £10,000 provided you
understand we admit no liability and you tell nobody anything about it."

But if the victim were to refuse a payout on those terms and insist on
going to court because as well as the money they wanted the hospital to
be publicly found to be in the wrong, if the court were only to award
say £9000, to whom would the victim's costs fall?

Nick

[brianwh...@hotmail.com]

There's a mechanism for this in the Civil Procedure Rules - Part 36. If, in the scenario you describe, the defendant hospital had made the 10k offer by way of a Part 36 offer, the Court would be required to decide whether the Claimant has managed to obtain an outcome which is more advantageous to it than the offer it rejected. In other words, whether i) £9k plus a public finding of wrongdoing is more advantageous than ii) 10k but confidentiality. If the court decides that the claimant didn't obtain an outcome which is more advantageous than the offer, the Court must (unless it considers that to do so would be unjust) the claimant would be required to pay the defendant's costs incurred in the period starting 21 days after the defendant's offer was made.

If the offer wasn't made in compliance with Part 36, the Court could still do the above, but isn't required to do so.

I don't think there's a straightforward answer, though, as to whether £9k plus a public finding of wrongdoing is more advantageous than £10k but confidentiality. It would be strongly dependent on the facts of the case, particularly whether the claimant was reasonable in wanting a public finding of wrongdoing.

[Martin Brown]

On 27/10/2018 17:48, Phi wrote:
>
> "Nick Odell" <ni...@themusicworkshop.plus.com> wrote in message
> news:pr175m$cs2$1...@dont-email.me...
>> Most NDAs, we are told, concern work on patent applications, using
>> sensitive information gained with one employer for the benefit of
>> another and reaching an agreement with a bank, hospital, business,
>> government etc where the organisation doesn't want to admit liability
>> and doesn't want the rest of the world to know the terms of any
>> settlement.
>>
>> Am I right in thinking that in a straighforward civil claim, if the
>> plaintiff refuses an out-of-court settlement and insists on going
>> through the court, if the court actually awards a lower sum, the costs
>> fall to the plaintiff because it is reasoned, all those costs could
>> have been avoided by accepting the settlement previously offered?
>>
>> What if the plaintiff refuses a settlement, not for monetary reasons
>> but because they do not wish to be bound by the NDA bundled up with
>> it? Will the plaintiff, if they win, still be liable for the other
>> party's costs if the court awards a lower sum? Is this the reason why
>> so many people seem willing to sign NDAs rather than have their day in
>> court?
>

> I see that change.org has a petition going the rounds to stop
> non-disclosure agreements being used for non-commercial purposes.

But from the point of view of the corporate player trying to guard its
reputation against criticism following a cock up the NDA is being used
for commercial purposes - to prevent other claimants from knowing that
they are not alone. Divided and forced to take individual expensive
legal advice claimants are much easier for the corporate to deal with.

There is serious game theory involved in this sort of thing and the deck
is entirely stacked against the victims (even if they have good advice).

The legal team acting for the corporate will probably have done several
similar cases already and have templates for dealing with it.

--
Regards,
Martin Brown

[The Todal]

No court is going to force a claimant to sign a non-disclosure agreement.

A Part 36 settlement offer from a Defendant which adds a clause saying
that acceptance of the sum would require the claimant to sign a NDA,
would not in my opinion protect the defendant on costs. But as far as I
know, the point has never been tested.

The main reason why people sign NDAs can only (I think) be because they
have been offered a sum of money far greater than the true value of
their claim, to buy their silence. In some cases the claimant also has
an interest in maintaining confidentiality. If it is known that you have
complained about bullying and harassment and have been compensated, that
might harm your prospects of gaining employment in future - some
companies are very risk averse and might assume that you were unduly
litigious.

[Nick Odell]

>> "Whoops! We took the wrong kidney out! Here's £10,000 provided you

>> understand we admit no liability and you tell nobody anything about it."
>>
>> But if the victim were to refuse a payout on those terms and insist on
>> going to court because as well as the money they wanted the hospital to
>> be publicly found to be in the wrong, if the court were only to award

>> say £9000, to whom would the victim's costs fall?
>
> There's a mechanism for this in the Civil Procedure Rules - Part 36. If, in the scenario you describe, the defendant hospital had made the 10k offer by way of a Part 36 offer, the Court would be required to decide whether the Claimant has managed to obtain an outcome which is more advantageous to it than the offer it rejected. In other words, whether i) £9k plus a public finding of wrongdoing is more advantageous than ii) 10k but confidentiality. If the court decides that the claimant didn't obtain an outcome which is more advantageous than the offer, the Court must (unless it considers that to do so would be unjust) the claimant would be required to pay the defendant's costs incurred in the period starting 21 days after the defendant's offer was made.

>
> If the offer wasn't made in compliance with Part 36, the Court could still do the above, but isn't required to do so.
>

> I don't think there's a straightforward answer, though, as to whether £9k plus a public finding of wrongdoing is more advantageous than £10k but confidentiality. It would be strongly dependent on the facts of the case, particularly whether the claimant was reasonable in wanting a public finding of wrongdoing.
>
Thank you! I was just curious: I don't have any actions pending :)

Nick

[The Todal]

>> "Whoops! We took the wrong kidney out! Here's £10,000 provided you

>> understand we admit no liability and you tell nobody anything about it."
>>
>> But if the victim were to refuse a payout on those terms and insist on
>> going to court because as well as the money they wanted the hospital to
>> be publicly found to be in the wrong, if the court were only to award

>> say £9000, to whom would the victim's costs fall?
>
> There's a mechanism for this in the Civil Procedure Rules - Part 36. If, in the scenario you describe, the defendant hospital had made the 10k offer by way of a Part 36 offer, the Court would be required to decide whether the Claimant has managed to obtain an outcome which is more advantageous to it than the offer it rejected. In other words, whether i) £9k plus a public finding of wrongdoing is more advantageous than ii) 10k but confidentiality. If the court decides that the claimant didn't obtain an outcome which is more advantageous than the offer, the Court must (unless it considers that to do so would be unjust) the claimant would be required to pay the defendant's costs incurred in the period starting 21 days after the defendant's offer was made.

>
> If the offer wasn't made in compliance with Part 36, the Court could still do the above, but isn't required to do so.
>

> I don't think there's a straightforward answer, though, as to whether £9k plus a public finding of wrongdoing is more advantageous than £10k but confidentiality. It would be strongly dependent on the facts of the case, particularly whether the claimant was reasonable in wanting a public finding of wrongdoing.
>


If a claimant refused a Part 36 offer and failed to achieve a greater
sum in damages at a trial, I don't think the argument "I wanted a public
finding of wrongdoing so I insisted it should go to trial" would carry
any weight. The claimant would expect to have the usual costs penalties.

I think one exception is defamation - an apology in open court is
usually required as part of the settlement.

[Roland Perry]

In message <g3mkr5...@mid.individual.net>, at 20:34:45 on Sun, 28
Oct 2018, The Todal <the_...@icloud.com> remarked:

I'm inclined to think it's more about the complainant being interested
in a clean break and obtaining whatever compensation they were due
(whether contractual or redundancy pay etc[1]) without a long drawn out
tribunal or court case.

>In some cases the claimant also has an interest in maintaining
>confidentiality. If it is known that you have complained about bullying
>and harassment and have been compensated, that might harm your
>prospects of gaining employment in future - some companies are very
>risk averse and might assume that you were unduly litigious.

The absence of a disclosable reason why they left their previous
employer is also going to be a turn-off for many prospective employers,
and is another reason the claimant might be interested in a fund to tide
them over.

[1] If you factor in things like bonuses, it can mount up. I know people
who were fired with the decision being made 'mysteriously' a week or
two before they'd have qualified for a substantial profit-share.
Another who was fired just before the company would have paid their
annual in-arrears pension contribution - something actionable, but
still a major hassle.
--
Roland Perry

[Vir Campestris]

On 27/10/2018 09:21, Nick Odell wrote:

I've come across NDAs in employment in two contexts:
- Protecting company secrets, mostly intellectual property.
- Keeping redundancy settlements private.

The former seems fair enough to me - you don't want your salesmen taking
their contacts list to a new job, or your engineers wandering off with
the designs.

And if you won't sign, you don't get the job.

The latter - Well, legal advice was fight if you want. But you won't get
as much as they are offering. Even if unfair dismissal were to be proved.

Andy

[brianwh...@hotmail.com]

I was commenting on the scenario where the Part 36 offer includes an obligation of confidentiality. I don't accept that that obligation would always be ignored when considering whether the claimant has beaten the defendant's offer. It is fact-specific.

[Mark Goodge]

On Sun, 28 Oct 2018 21:36:48 +0000, Vir Campestris
<vir.cam...@invalid.invalid> wrote:

>I've come across NDAs in employment in two contexts:
>- Protecting company secrets, mostly intellectual property.
>- Keeping redundancy settlements private.
>
>The former seems fair enough to me - you don't want your salesmen taking
>their contacts list to a new job, or your engineers wandering off with
>the designs.
>
>And if you won't sign, you don't get the job.
>
>The latter - Well, legal advice was fight if you want. But you won't get
>as much as they are offering. Even if unfair dismissal were to be proved.

I signed an NDA on a redundancy settlement at the end of a previous
job. There was nothing unfair about it. We negotiated a severance deal
that was mutually beneficial, and both parties agreed to keep schtum
about it in case anyone else felt it was unfair to them! There was
also a separate clause about company secrets, particularly marketing
strategies and customer data.

Mark

[The Todal]

>>>> "Whoops! We took the wrong kidney out! Here's £10,000 provided you

>>>> understand we admit no liability and you tell nobody anything about it."
>>>>
>>>> But if the victim were to refuse a payout on those terms and insist on
>>>> going to court because as well as the money they wanted the hospital to
>>>> be publicly found to be in the wrong, if the court were only to award

>>>> say £9000, to whom would the victim's costs fall?
>>>
>>> There's a mechanism for this in the Civil Procedure Rules - Part 36. If, in the scenario you describe, the defendant hospital had made the 10k offer by way of a Part 36 offer, the Court would be required to decide whether the Claimant has managed to obtain an outcome which is more advantageous to it than the offer it rejected. In other words, whether i) £9k plus a public finding of wrongdoing is more advantageous than ii) 10k but confidentiality. If the court decides that the claimant didn't obtain an outcome which is more advantageous than the offer, the Court must (unless it considers that to do so would be unjust) the claimant would be required to pay the defendant's costs incurred in the period starting 21 days after the defendant's offer was made.

>>>
>>> If the offer wasn't made in compliance with Part 36, the Court could still do the above, but isn't required to do so.
>>>

>>> I don't think there's a straightforward answer, though, as to whether £9k plus a public finding of wrongdoing is more advantageous than £10k but confidentiality. It would be strongly dependent on the facts of the case, particularly whether the claimant was reasonable in wanting a public finding of wrongdoing.

>>>
>>
>>
>> If a claimant refused a Part 36 offer and failed to achieve a greater
>> sum in damages at a trial, I don't think the argument "I wanted a public
>> finding of wrongdoing so I insisted it should go to trial" would carry
>> any weight. The claimant would expect to have the usual costs penalties.
>
> I was commenting on the scenario where the Part 36 offer includes an obligation of confidentiality. I don't accept that that obligation would always be ignored when considering whether the claimant has beaten the defendant's offer. It is fact-specific.
>

If you're a defendant and you make a Part 36 offer and you add a
condition requiring the claimant to maintain confidentiality about the
settlement, I believe that the claimant's representative would be
entitled to say "your offer would be acceptable if the confidentiality
clause was deleted" and thereafter your offer would offer you no costs
protection.

But if there's any case law I could be persuaded otherwise. In the many
litigated cases I've been involved with, there have been no
non-disclosure agreements except in cases before employment tribunals -
where Part 36 doesn't apply. Maybe, for all we know, the NDAs that have
featured in the news recently relate to employment tribunal claims. If
you are subjected to workplace bullying you can bring your claim before
an employment tribunal and it's conceivable that an employer might offer
you more than the maximum that a tribunal could award, in exchange for a
firm and binding non-disclosure agreement. If you then went to the
Press, I think this would be rather dishonourable unless you gave
permission to the employer to violate the non-disclosure agreement in
order to give its side of the story in full.

[Andy Walker]

On 28/10/2018 20:47, The Todal wrote:
> On 28/10/2018 13:54, brianwh...@hotmail.com wrote:
>> I don't think there's a straightforward answer, though, as to

>> whether £9k plus a public finding of wrongdoing is more
>> advantageous than £10k but confidentiality. It would be strongly

>> dependent on the facts of the case, particularly whether the
>> claimant was reasonable in wanting a public finding of wrongdoing.
> If a claimant refused a Part 36 offer and failed to achieve a greater
> sum in damages at a trial, I don't think the argument "I wanted a
> public finding of wrongdoing so I insisted it should go to trial"
> would carry any weight. The claimant would expect to have the usual
> costs penalties.

IANAL ["obviously"] but is not the answer here for the claimant
to put in his own Part 36 offer, say of £8K? Effectively, that is
saying to the hospital that he values the NDA at more than £2K. Then
it's up to the hospital. But if the outcome is, as postulated, £9K
following the court case, and without the NDA, then Nick's hypothetical
claimant has beaten his offer and deserves to get costs.

--
Andy Walker,
Nottingham.

[brianwh...@hotmail.com]

I think we are largely in agreement.

[The Todal]

There's quite a lot of ACAS guidance about settlement agreements for
unfair dismissal (etc) claims. There's a model "Clause 8" about
confidentiality clauses. See p 69, and the preceding notes. It is
standard for the employer to pay a standard sum to cover the fee of an
independent solicitor advising the claimant on the settlement agreement.
I'm sceptical about anyone saying that they were browbeaten into signing
a confidentiality clause.

http://www.acas.org.uk/media/pdf/n/h/Settlement-agreements-a-guide.pdf

[brianwh...@hotmail.com]

PS an example of where the parties might reasonably disagree over the presence of an NDA (and where Part 36 applies) is intellectual property disputes. Big brand owners often wish to publicise their enforcement activities (for obvious reasons), whereas defendants typically prefer to keep things confidential (for equally obvious reasons).

[Robin]

On 29/10/2018 11:14, The Todal wrote:

> I'm sceptical about anyone saying that they were browbeaten into signing
> a confidentiality clause.
>

+1

But I can well understand the temptation to tell relations, friends, and
investigative journalists "I was browbeaten into settling and signing"
rather than "the money was just too good to turn down".


--
Robin
reply-to address is (intended to be) valid

[Mark Goodge]

On Mon, 29 Oct 2018 11:14:14 +0000, The Todal <the_...@icloud.com>
wrote:

My solicitor had a look at it and said "You've got a good deal there,
so take it". There was one clause that he felt might be worth arguing
about (a non-compete clause), but since I'd already got my next career
move lined up which was in a completely different industry sector I
didn't think it was worth the hassle of quibbling over. I was
perfectly happy to take the money and run.

There was no question of unfair dismissal. Instructions had come down
the line from head office to reduce staff numbers, and as a result of
other (also centrally imposed) reorganisations my job was an obvious
one to cut. The only issue was that I didn't fit the LIFO criteria
often applied to redundancies, hence the negotiations around the
severance fee.

Mark

[Vir Campestris]

On 29/10/2018 11:14, The Todal wrote:

> I'm sceptical about anyone saying that they were browbeaten into signing
> a confidentiality clause.

Browbeaten? No. But even though "purely by chance" the selection for
redundancy had picked all the over-40s the offer was better than
anything I could expect elsewhere.

So perhaps bribed is the right term?

Obviously I will not be disclosing the company.

Andy

[The Todal]

But did they insist on a confidentiality clause and did you say that you
weren't really in favour of one?

Lawyers tend to use the templates that are familiar to them. If their
standard template contains a confidentiality clause, and neither side
questions the need for one, then it goes in the final document.

[Vir Campestris]

I didn't try. My professional legal adviser said to take it, don't fight.

Andy

[Ian Jackson]

In article <prih1k$37s$2...@dont-email.me>,

Vir Campestris <vir.cam...@invalid.invalid> wrote:
>On 01/11/2018 21:53, The Todal wrote:
>> But did they insist on a confidentiality clause and did you say that you
>> weren't really in favour of one?

...

>I didn't try. My professional legal adviser said to take it, don't fight.

This illustrates the problem very well. Generally in these kind of
settlements the person has other fish to fry than what is ultimately
the public interest in exposing wrongdoing.

Perhaps the solution is to have a statutory right to retrospectively
amend (by notice to the other party) any agreement which settles a
dispute, to remove any confidentiality clauses binding either side.

That way if indeed both sides are benefiting, the confidentiality
clause will stay. If one side was pressured into it, or didn't
consider the matter properly, or circumstances change so that
disclosure is now more important, then they can serve a
non-confidentiality notice after which both sides can tell their
version of events.

Perhaps such a notice should act as a partial waiver of GDPR rights.

--
Ian Jackson <ijac...@chiark.greenend.org.uk> These opinions are my own.

If I emailed you from an address @fyvzl.net or @evade.org.uk, that is
a private address which bypasses my fierce spamfilter.

[Robin]

On 03/11/2018 12:14, Ian Jackson wrote:
> In article <prih1k$37s$2...@dont-email.me>,
> Vir Campestris <vir.cam...@invalid.invalid> wrote:
>> On 01/11/2018 21:53, The Todal wrote:
>>> But did they insist on a confidentiality clause and did you say that you
>>> weren't really in favour of one?

> ....

>> I didn't try. My professional legal adviser said to take it, don't fight.
>
> This illustrates the problem very well. Generally in these kind of
> settlements the person has other fish to fry than what is ultimately
> the public interest in exposing wrongdoing.
>
> Perhaps the solution is to have a statutory right to retrospectively
> amend (by notice to the other party) any agreement which settles a
> dispute, to remove any confidentiality clauses binding either side.
>
> That way if indeed both sides are benefiting, the confidentiality
> clause will stay. If one side was pressured into it, or didn't
> consider the matter properly, or circumstances change so that
> disclosure is now more important, then they can serve a
> non-confidentiality notice after which both sides can tell their
> version of events.
>
> Perhaps such a notice should act as a partial waiver of GDPR rights.
>

I'm unclear how that works.

Suppose eg A agrees to pay B £100,000 in full and final settlement of
B's claim that A dressed up as a Hitler and made B salute him. A
argues this is because it is a false claim but some people will believe
it if it goes public. They both sign NDAs. But B has a statutory right
to revoke the NDA later.

Does B have to go to court (or some other body) to argue that the circs
have changed or that B didn't consider the matter properly?

Does A have the right to argue against that?

Is all this in public?

Does B have to repay the money if B is released from the NDA?

Seems to me to lead back to many of the problems that might arise if
NDAs were banned - including A thinking "Sod having this hanging over
me, I'd rather spend the money taking the bugger through the courts to
brand him a liar; and hit him in the pocket."

[Ian Jackson]

In article <b483395e-1c18-90dd...@outlook.com>,

Robin <r...@outlook.com> wrote:
>> Perhaps the solution is to have a statutory right to retrospectively
>> amend (by notice to the other party) any agreement which settles a
>> dispute, to remove any confidentiality clauses binding either side.

...

>I'm unclear how that works.
>
>Suppose eg A agrees to pay B £100,000 in full and final settlement of
>B's claim that A dressed up as a Hitler and made B salute him. A
>argues this is because it is a false claim but some people will believe
>it if it goes public. They both sign NDAs. But B has a statutory right
>to revoke the NDA later.

Preumably A is an employer and B an employee, or something similar.
In terms of cause of action that would be workplace harassment I
guess.

>Does B have to go to court (or some other body) to argue that the circs
>have changed or that B didn't consider the matter properly?

No.

>Does A have the right to argue against that?

No.

>Is all this in public?

It's not argued in public because it's a legal right that B has.

If B then exercises their right to actually disclose what they see as
A's wrongdoing, then indeed A and B are probably going to end up in a
public row of some kind.

>Does B have to repay the money if B is released from the NDA?

No.

>Seems to me to lead back to many of the problems that might arise if
>NDAs were banned - including A thinking "Sod having this hanging over
>me, I'd rather spend the money taking the bugger through the courts to
>brand him a liar; and hit him in the pocket."

You suggest A `taking the bugger through the courts' but I don't
understand what A's cause of action is. If you mean `forcing A to
take their complaint to the Employment Tribunal' (or whatever) then
yes, my proposal might involve fewer payoffs for individuals, to keep
schtum.

For me the question is whether it is in interests of victims,
overally, if silence can be bought.

[Robin]

On 03/11/2018 21:04, Ian Jackson wrote:
> In article <b483395e-1c18-90dd...@outlook.com>,
> Robin <r...@outlook.com> wrote:
>>> Perhaps the solution is to have a statutory right to retrospectively
>>> amend (by notice to the other party) any agreement which settles a
>>> dispute, to remove any confidentiality clauses binding either side.

> ....

>> I'm unclear how that works.
>>

>> Suppose eg A agrees to pay B £100,000 in full and final settlement of

>> B's claim that A dressed up as a Hitler and made B salute him. A
>> argues this is because it is a false claim but some people will believe
>> it if it goes public. They both sign NDAs. But B has a statutory right
>> to revoke the NDA later.
>
> Preumably A is an employer and B an employee, or something similar.
> In terms of cause of action that would be workplace harassment I
> guess.
>
>> Does B have to go to court (or some other body) to argue that the circs
>> have changed or that B didn't consider the matter properly?
>
> No.
>
>> Does A have the right to argue against that?
>
> No.
>
>> Is all this in public?
>
> It's not argued in public because it's a legal right that B has.
>
> If B then exercises their right to actually disclose what they see as
> A's wrongdoing, then indeed A and B are probably going to end up in a
> public row of some kind.
>
>> Does B have to repay the money if B is released from the NDA?
>
> No.

So it seems NDAs would become agreements which can be breached without
loss or penalty. That would seem to make them rather unattractive.

>> Seems to me to lead back to many of the problems that might arise if
>> NDAs were banned - including A thinking "Sod having this hanging over
>> me, I'd rather spend the money taking the bugger through the courts to
>> brand him a liar; and hit him in the pocket."
>
> You suggest A `taking the bugger through the courts' but I don't
> understand what A's cause of action is. If you mean `forcing A to
> take their complaint to the Employment Tribunal' (or whatever) then
> yes, my proposal might involve fewer payoffs for individuals, to keep
> schtum.

> For me the question is whether it is in interests of victims,
> overally, if silence can be bought.
>

You say "silence is bought" as if there were always a clear cut case.
Do you deny that there are cases where lawyers advise employees that
settlements with NDAs are the best course because they are by no means
sure to win their cases? You may call that "buying silence" but the
employees may think it is vastly better than walking away with nothing
bar a reputation for making unproven accusations.

ISTM it boils down to you wanting some Bs to be forced to risk a lot in
order to expose some As, rather than leaving each B to decide whether or
not to settle in return for a payment and NDA. You and others may call
that progressive. I call it a denial of individual freedom, and one
with a high risk of unintended consequences.

FTAOD, I am happy for _you_ (and anyone else) to choose to settle and
sign an NDA or not. What I don't see is the case for legislation that
in practice denies people the option of a settlement with binding NDAs.

[Ian Jackson]

In article <dfcb7700-4555-7654...@outlook.com>,

Robin <r...@outlook.com> wrote:
>So it seems NDAs would become agreements which can be breached without
>loss or penalty. That would seem to make them rather unattractive.

You are framing this as "NDAs" but of course I was talking about
*settlement agreements*. That is agreements to settle a claim or
dispute.

A pure NDA (eg as commonly used commercially to keep mutual commercial
confidences when engaging in joint activity) would not be affected.
(You'd have to write the new law to avoid people escaping its effect
by the fictional formulation of a settlement-and-NDA agreement as two
separate agreements.)

A settlement agreement is still an attractive option for both sides
because it avoids the costs and risk of a legal fight.

And indeed an agreement not to air the dirty laundry in public may
well be attractive for both sides for the reasons you mention. Often
B will not want to be seen as someone who makes trouble.

Bear in mind that the settlement still removes a significant motive
for B to escalate the dispute into the public realm, which is to
extract a payoff from A. The remaining motives for disclosure by B is
pretty much only the public interest, or perhaps a desire for revenge.

>ISTM it boils down to you wanting some Bs to be forced to risk a lot in
>order to expose some As, rather than leaving each B to decide whether or
>not to settle in return for a payment and NDA. You and others may call
>that progressive. I call it a denial of individual freedom, and one
>with a high risk of unintended consequences.

IMO when B is paid by A to keep quiet, they are engaging in a
conspiracy with A, against the public, to be bribed to conceal A's
wrongdoing.

The key point is the separation of legal settlement and payoff, on the
one one hand, from the agreement not to air the dirty laundry in
public, on the other.

[Robin]

On 04/11/2018 12:35, Ian Jackson wrote:
> In article <dfcb7700-4555-7654...@outlook.com>,
> Robin <r...@outlook.com> wrote:
>> So it seems NDAs would become agreements which can be breached without
>> loss or penalty. That would seem to make them rather unattractive.
>
> You are framing this as "NDAs" but of course I was talking about
> *settlement agreements*. That is agreements to settle a claim or
> dispute.

Because your proposition was "a statutory right to retrospectively

amend (by notice to the other party) any agreement which settles a

dispute, to remove any confidentiality clauses binding either side." It
is of course possible to have a settlement agreement without an NDA.
But a crucial issue is what that means for the chances of reaching
agreement.

You there seem again to be disputing - or ignoring - that without NDAs
there will be fewer agreements. I have only ever seen two such cases.
But I have respect for the views of lawyers with experience of acting
for claimants - eg Graham Brahams (Chair of the Employment Lawyers
Association) whose evidence to the Select Committee warned of unintended
consequences. He has elaborated on that since, concluding:

"I personally feel very wary of anything that will make settlement less
likely and trying to limit the use of NDAs in a settlement agreement is
absolutely going to make settlement less likely. If a manager feels that
there is a risk that the employee will make statements about what went
on, that manager will be more likely to say that the case needs to go
all the way to the ET to clear their name."

https://www.bdbf.co.uk/gareth-brahams-gives-evidence-on-use-of-ndas-in-sexual-harassment-cases-to-the-women-equalities-committee/