The vast majority of tort cases are settled, and many of the settlements include confidentiality provisions that prevent the public from learning about the allegedly wrongful conduct. This has been true for decades, but the confidentiality provisions—nondisclosure agreements (“NDAs”)—have become increasingly controversial. The #MeTooMovement provided momentum to criticism of NDAs, and multiple states and even the federal government have passed legislation restricting their use.
But do such “sunshine laws” matter to plaintiffs? Noting the lack of empirical data on the issue, Professor Gilat Juli Bachar fills the void with the first article to examine the “extent to which a confidentiality clause affects plaintiffs…when weighing a settlement offer….” (P. 1260.) Such information is important because “the real-world impact of sunshine laws ultimately depends on the litigants themselves.” (P. 1206.) Not only does Professor Bachar shed light on how NDAs are perceived, but she also delves further to identify other factors affecting a plaintiff’s willingness to settle. Bachar’s excellent article is useful on the prominent issue of NDAs, and her methods have the potential to reveal information crucial to a better-functioning civil justice system.
Because of the difficulty of speaking to actual plaintiffs, Bachar relies on a vignette design, putting participants in the shoes of plaintiffs. (P. 1228.) She surveys a representative sample of Americans, inquiring about the extent to which they would accept a settlement offer (the main dependent variable). (P. 1227.) Bachar manipulates two main independent variables: settlement confidentiality and repeat wrongdoing. (P. 1227.) Additionally, Bachar examines three other independent variables: the amount of the settlement, the existence of a sanction against the wrongdoer as part of the settlement terms, and the context of the scenario (products liability manufacturing defect versus sexual harassment). (P. 1229.)
Bachar divides the participants into four groups, with each group randomly assigned to one of four conditions representing combinations of the two main independent variables. The groups are: (1) confidential + first-time wrongdoer; (2) confidential + repeat wrongdoer; (3) public + first-time wrongdoer; and (4) public + repeat wrongdoer. (P. 1231.) In all conditions, participants read two fictional vignettes, one from products liability and one from sexual harassment. For each scenario, participants were presented with variations to the original vignette, adjusting the amount of the settlement offer and including a provision imposing a sanction on the wrongdoer. (P. 1232.)
Bachar cautiously notes the limitations on vignette design and acknowledges that her results should be confirmed. (Pp. 1246-47.) Her main results, however, are robust and noteworthy. First, repeat wrongdoing decreases settlement likelihood. (P. 1247.) Information about the defendant being a repeat wrongdoer significantly decreases the likelihood of settlement, regardless of the demand for confidentiality or lack thereof, in both the products liability and sexual harassment scenarios. (P. 1247.) Second, confidentiality decreases settlement likelihood. (P. 1250.) This was true even against a first-time wrongdoer, and true in both scenarios, though stronger in sexual harassment cases. (Pp. 1251-52.) Third, more money increases settlement likelihood, including when confidential. (P. 1252.) In fact, offering a larger amount eliminates much of the preference for a public settlement. Fourth, participants are more willing to settle a products liability dispute than one about sexual harassment. (P. 1254.)
Bachar focuses on the last point, that participants are more willing to settle a products case than a sexual harassment case. (Pp. 1254-59.) In so doing, she highlights a separate finding on adding a sanction: “when considering a settlement offer, the defendant suffering a sanction mattered more to sexual harassment plaintiffs than it did to products liability plaintiffs.” (P. 1257.) Bachar makes the further observation that the liability standards for the two scenarios are different. A manufacturing defect receives a true strict liability (no-fault) standard and sexual harassment would receive several different standards depending on the claim, but all involve fault. (Pp. 1254-55.) The conclusion she reaches is that although a manufacturing defect is a legal wrong, sexual harassment “was perceived as more morally ‘wrong.’” (P. 1257.)
This insight into wrongful conduct, when combined with the fact that repeated wrongdoing and confidentiality reduce a plaintiff’s desire to settle, allows Bachar to conclude that “there is more to this [settlement] decision than a desire for self-restoration or to maximize a monetary payout a claim produces.” (P. 1260.) Although more money increases the likelihood of settlement even when confidential, her conclusion is sound. The wrongfulness of tort causes of action varies from claim to claim. It is on the low end for manufacturing defects and on the high end for behavior that can be described as sexual harassment. Moreover, victims’ reactions to being wronged vary from person to person, with some victims wanting accountability from the wrongdoer and others more focused on simply repairing the harm.1
The relevance of this article goes beyond the question of settlement confidentiality. People pursue different goals in the settlement process because people file suit for different reasons. Bachar is beginning to provide information on why victims of wrongdoing step forward and file suit. Understanding why tort victims sue is increasingly important. Despite the contingent fee, tort law suffers from an access-to-justice problem that is only worsening because of tort reform and technological advances, which make tort cases more complex and thus slower and more expensive. Potential plaintiffs are discouraged by the time and money needed to pursue civil justice, and, in deciding to take a case, plaintiffs’ lawyers insist on increasingly higher damages to justify the risk of a lack of recovery.
In a forthcoming book chapter, I argue that creating a bypass—a simpler, cheaper procedure perhaps with reduced damages—as an option for the parties has the potential to provide access to justice for more wronged victims. Expediting the resolution of claims would help realize tort law’s promise as a law of wrongs and recourse, likely without significantly undermining the law’s deterrent effects.2 By providing crucial information about why victims file and settle tort suits, Bachar’s work informs us how many victims might be interested in a tort bypass and influence its design.
Professor Bachar is a welcome addition to tort scholars, with her empirical methodology, clear writing, and focus on critical issues. I look forward to reading her pieces for years to come.
- One study of Florida medical malpractice plaintiffs asked the participants: “If you had had the opportunity of receiving guaranteed compensation for medical expenses and lost income caused by the medical injury, but no compensation for pain and suffering, inconvenience, or other non-economic losses, would you have taken that opportunity?” Over thirty percent of the plaintiffs in the survey answered in the affirmative. Allen W. Imershein & Alan H. Brents, The Impact of Large Medical Malpractice Awards on Malpractice Awardees, 13 J. Legal Med. 33, 40 (1992).
- Christopher J. Robinette, Streamlined Procedures, in A Research Agenda for Torts (Ellen M. Bublick & John Goldberg, eds., forthcoming 2025).
