California Supreme Court Addresses Attorney Obligations Regarding Confidential Settlement Agreements, Aided By Walsh Amicus Brief

July 14, 2019 in Firm News

When a lawyer approves a settlement agreement “as to form and content,” is the attorney bound to the agreement’s confidentiality restrictions? That question was before the California Supreme Court in Monster Energy Co. v. Schechter, with the Court on July 11, 2019, reinstating Monster Energy’s suit against the attorney accused of breaching such a provision. Walsh submitted an amicus brief on behalf of the International Association of Defense Counsel (IADC), urging that Monster Energy’s claim go forward against the attorney, who offered comments about the settlement in a litigation blog.

In response to the filing of the suit, the attorney filed a SLAPP motion, arguing that the case qualified as a strategic lawsuit against public participation, namely, his public comments about the earlier personal injury suit he filed against Monster Energy.  The trial court denied the motion as to Monster Energy’s breach of contract claim, but the intermediate appellate court reversed, dismissing the suit.  In last week’s decision, California’s highest court vacated the appellate court’s order, holding that the attorney, who had signed a settlement agreement under the legend “approved as to form and content,” could be found to have breached the settlement’s confidentiality provisions by disclosing information about the settlement to a blog focused on plaintiff-side litigation.  The Court concluded that the attorney’s signature under the legend “approved as to form and content” did not preclude a factual finding that the attorney intended to be bound by the agreement’s confidentiality provisions.

Walsh Partner Peter J. Pizzi and Counsel Katherine M. Romano filed an Amicus Curiae brief in support of Monster Energy Co. on behalf of IADC, an organization of approximately 2,500 corporate and insurance attorneys from around the globe whose practice is concentrated on the defense of civil lawsuits.  The amicus brief argued that California’s longstanding public policy in favor of settlement, and the importance of the enforceability of confidentiality provisions in settlement agreements, weighed in favor of Monster Energy Co.’s position.

The Court agreed, holding that its conclusion “recognizes the role that confidentiality plays in facilitating settlement agreement,” citing “the strong public policy of this state favoring settlement of actions.”  The Court relied upon caselaw and quotations cited in Walsh’s Amicus brief, including language from an intermediate California appellate court decision indicating that “The privacy of a settlement is generally understood and accepted in our legal system, which favors settlement and therefore supports attendant need for confidentiality.”

A copy of Walsh’s amicus brief is available here and the Opinion is available at