[Congressional Record Volume 160, Number 71 (Monday, May 12, 2014)]
[Senate]
[Pages S2912-S2913]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




          STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

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      By Mr. WHITEHOUSE:
  S. 2317. A bill to restrict confidentiality agreements that prohibit 
the disclosure of information relating to hazards to public safety or 
health, and for other purposes; to the Committee on the Judiciary.
  Mr. WHITEHOUSE. Mr. President, today I am pleased to introduce the 
Safety over Secrecy Act, which prohibits courts from enforcing 
confidentiality agreements in the settlement of civil suits involving 
hazards to public health and safety. This bill will ensure that 
plaintiffs in such suits do not have to remain silent about their 
experiences as a condition of settling their disputes.
  While confidentiality agreements can be useful tools to protect 
sensitive information and trade secrets, too often they are used to 
hide important safety concerns from regulators, policymakers, the news 
media, public health experts, and the general public. Over the past 20 
years, we have learned of numerous cases where court-approved secrecy 
has shielded serious public health and safety dangers from the public--
putting hundreds, if not thousands, of lives at risk. These cases have 
involved hydraulic fracturing, or ``fracking,'' asbestos, defective 
auto components, and ``adverse incidents'' from drugs.
  Typically in these cases, victims face large corporations that can 
spend unlimited amounts of money defending lawsuits and prolonging 
their resolution. Faced with mounting litigation expenses and medical 
bills, plaintiffs often seek to settle their suits. In exchange for 
damages, they are forced to agree to provisions that prohibit them from 
discussing their cases or revealing information disclosed during 
litigation. Defendants are thus able to keep damaging information from 
getting out. As a result the public, as well as regulatory agencies, 
remain unaware of the risks.
  Let us take fracking, where drillers from Pennsylvania to Arkansas 
and Wyoming to Texas have entered into cash settlements or property 
buyouts with individuals who claim fracking has contaminated their 
water and polluted their air. In the vast majority of these cases, the 
cost of the awards has been the plaintiffs' silence. As Aaron 
Bernstein, associate director of the Center for Health and the Global 
Environment at the Harvard School of Public Health, put it in an 
interview, non-disclosure agreements ``have interfered with the ability 
of scientists and public health experts to understand what is at 
stake'' in the country's quickly evolving energy infrastructure.
  Perhaps the most notorious case of fracking hush money is the 
Hallowich case. In that case, Chris and Stephanie Hallowich's dream 
house--built on acres of land in southwestern Pennsylvania--turned out 
to be sitting atop the Marcellus Shale, one of the biggest fracking 
operations in the country. The previous land owner had leased the 
mineral rights to various gas companies. Soon after moving in, Chris,

[[Page S2913]]

Stephanie, and their young children began experiencing headaches, nose 
bleeds, burning eyes, and sore throats. After complaining for three 
years of what they concluded were the side effects of contaminated air 
and water, the Hallowiches brought suit. Without accepting 
responsibility for any health effects, the companies agreed to pay the 
Hallowiches $750,000 so that they could move off the property, in 
exchange for the Hallowiches' promise to remain silent about the case. 
The case gained international attention when the Pittsburg Gazette 
obtained an unsealed settlement transcript 2 years later and discovered 
that the Hallowiches' 7 and ten year-old children had been gagged for 
life along with their parents under the confidentiality agreement. 
Needless to say, these gag orders make it difficult to challenge 
industry claims about the safety of the fracking process. Fracking is 
just one of many areas where defendants impose secrecy as a condition 
of settlement.
  Under current law, judges are not specifically required to consider 
the public interest when determining the enforceability of 
confidentiality ageements. In cases involving hazards to public health 
and safety, and only in those cases, this bill would change that, and 
would require judges to balance a party's specific interest in 
confidentiality against the public interest in disclosure of 
information when approving or enforcing confidentiality agreements. My 
bill would not prohibit secrecy agreements across the board because 
there are appropriate uses for such agreements, including protecting 
trade secrets and other confidential company and personal information. 
Given its narrow scope, this bill would not place undue burdens on our 
judges or judiciary system.
  In introducing the Safety over Secrecy Act, I want to recognize 
former Senator Kohl and his Sunshine in Litigation Act, which he 
introduced in various forms between 1995 and 2011. That bill, which I 
was proud to support in the Judiciary Committee, was a broader version 
of the legislation I have just introduced. I supported that bill when 
Senator Kohl introduced it, and I plan to offer my full support when it 
is introduced again in this chamber.

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