{ "media_type": "text", "post_content": "Plaintiff’s counsel wants to include the following language (expressed for purposes of this post in CAPS) in my client’s standard release, but I can’t tell if I should take an issue with it - thoughts?\n“The amount of this settlement and terms of this settlement are confidential and may only be disclosed to Plaintiff’s attorneys, government agencies, or as otherwise required IN THE ORDINARY COURSE OF BUSINESS OR by law or court order.”", "post_id": "60145c2faf0d0a0026297e5f", "reply_count": 12, "vote_count": 1, "bowl_id": "552d1d24dc1c586b09d2d052", "bowl_name": "Law" }

Plaintiff’s counsel wants to include the following language (expressed for purposes of this post in CAPS) in my client’s standard release, but I can’t tell if I should take an issue with it - thoughts? “The amount of this settlement and terms of this settlement are confidential and may only be disclosed to Plaintiff’s attorneys, government agencies, or as otherwise required IN THE ORDINARY COURSE OF BUSINESS OR by law or court order.”

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I would take issue, that seems pretty broad. Ordinary course of business sounds to me like they’re not going to tell anyone (e.g., lower level employees) specifically to keep it confidential and they just go about their daily business and if it gets disclosed to someone it gets disclosed. I’d ask them what exactly they have in mind and see if you can draft something narrower.

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I agree. That’s not something I typically see in release language or confidentiality type agreements.

If something is confidential, you don't disclose it in the ordinary course of business. Ask them if they have a specific concern, but otherwise strike it.

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It only adds emphasis but doesn't change the meaning of anything. If I was back in my clerk days I'm not sure I would give any weight to it besides that that was an important clause. But I think every word is important in a contract.

The proposed edit isn’t actually in caps. I just capitalized it so you guys could tell what the proposed edit at issue is 😊 sorry if I misunderstood your comment though, do you still think it doesn’t change the meaning?

When you say "standard release" to what context are you referring?

This is just a property damage case. We settled it and this is the release my client uses in all settlements. I can’t tell if the capitalized language (which isn’t actually capitalized on the release) carries any negative implications for my client

In 37 years, I have never seen those words added to a confidentiality provision in a release. The phrase is far too broad and ambiguous. As another reply stated, I would ask the drafter what was meant, and either revise or delete the language.

Bad drafting and agree with the ask and revise strategy above. I’m guessing they want to capture a set of innocuous things like disclosures to accountants, financial advisors, insurers, etc., but didn’t want to risk missing a category. But what is “required” by the ordinary course of business? Profit? Though if you add “to persons who have a duty to maintain the confidentiality of the settlement” after business, you’ll probably be fine and they’ll get what they want.

What’s with confidentiality clauses being part of a standard release? Why would it be in every release, do you always mention it before settlement and include it as part of the deal?

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