In the future, contractors and operators dealing with certain parts of a multi-party case should consider immediately applying for protection to challenge the disclosure of parts of a settlement agreement. A recent decision by the Houston Court of Appeals focused on when settlement agreements can be reached. See In re Grecon, Inc., 14-17-00639-CV (Tex.App.-Houston [14th Dist.] January 12, 2018). This case has a significant impact on the respect of the confidentiality of settlement agreements when disputes are ongoing against non-party parties. Hinshaw spoke of an abuse of rights case. The plaintiffs were part of a group of physicians represented by hinshaw Law Firm (« law firm ») against Kaiser. For reasons at issue, the Hinshaw applicants dismissed their actions and the other applicants agreed on the basis of a confidential settlement agreement. Later, another group of doctors sued Kaiser for similar allegations; the Hinshaw applicants attempted to join the second prosecution, but were excluded because of their involvement in the first case. As a result, the Hinshaw plaintiffs sued the registry for abuse of rights.
In the lawsuit against the firm, the Hinshaw plaintiffs requested copies of the confidential agreements reached in the first and second complaint against Kaiser to calculate their harm. The Court of First Instance rejected that request on the account of `public policy which favours comparisons, the explicit wish of the parties for confidentiality and the speculative nature of the measure of the damage suffered by the applicants as a result of those transactions`. Hinshaw, 51 Cal. App. 4. to 242. The plaintiff, Allergan, sued the three generic drug manufacturers, Apotex, Mylan and Teva. Apotex agreed and Mylan requested a copy of the transaction agreement between Allergan and Apotex. Allergan eventually agreed to establish the settlement agreement, but with the caver that Mylan`s external attorney would not have access to the settlement agreement with Allergan. Mylan disagreed.
In federal courts, confidential settlement agreements are protected from disclosure through the adoption of a protection order in the event of a good cause. Phillips ex rel. Estates of Byrd v. General Motors Corp., 307 F.3d 1206, 1212 (9th Cir. 2002) (« Phillips »). The right reason is not defined, but left to the discretion of the court of justice. Id. at 1211.
However, unlike the Hinshaw Standard, the burden of protection rests with the party seeking protection to demonstrate that there is « specific harm or harm in the absence of a protection order ». Id. at 1210-11. However, some California district courts have recognized that California`s strong public policies, which favor comparisons, support « enhanced control » over the establishment of confidential settlement agreements. See z.B. Big Baboon Corp. v. Dell, Inc., 2010 WL 3955831 *4 (C.D. Cal. 2010); MedImmune, L.L.C. v.
PDL BioPharma, Inc., 2010 WL 3636211 *2 (N.D. Cal. 2010). As a result, California`s federal courts are likely to always weigh « one party`s interest in discovering potentially relevant information and [the other party`s] interest in protecting a negotiated transaction with the expectation of confidentiality. » MedImmune, L.L.C., 2010 WL 3636211 to *2. Ultimately, disclosure disputes are often resolved by requiring asylum seekers to submit the transaction contract under seal for verification under camera. See z.B. Big Baboon Corp., 2010 WL 3955831 bei *4. .