The Ethics of Non-Disclosure Agreements vis-a-vis the Public Interest

Three examples: Tobacco research money at universities, and non-disclosure agreements in employee discrimination suits, confidential settlements in Catholic priest sex abuse cases.

In all cases, information that could help keep harm from being done and greatly increase the well-being and safety of the general population is being kept secret…trading silence for money.

In the scientific research field, for example, how much useful information is discovered in scientific research by industry…only to be kept from the public because it casts a negative light on a corporation’s activities?

Check out this article:

At One University, Tobacco Money Is a Secret

On campuses nationwide, professors and administrators have passionately debated whether their universities should accept money for research from tobacco companies. But not at Virginia Commonwealth University, a public institution in Richmond, Va.

That is largely because hardly any faculty members or students there know that there is something to debate — a contract with extremely restrictive terms that the university signed in 2006 to do research for Philip Morris USA, the nation’s largest tobacco company and a unit of Altria Group.

The contract bars professors from publishing the results of their studies, or even talking about them, without Philip Morris’s permission. If “a third party,” including news organizations, asks about the agreement, university officials have to decline to comment and tell the company. Nearly all patent and other intellectual property rights go to the company, not the university or its professors.

….

Rick Solana, the senior vice president for research and technology, said university scientists were studying how to identify early warning signs of pulmonary disease, and how to reduce nitrogen and phosphorus drained into rivers from processing tobacco leaves.

Dr. Solana also said the contract represented a new focus on developing tobacco products with reduced risks, a shift in strategy in underwriting university research that requires more confidentiality to protect the corporation’s intellectual property rights. And he said Philip Morris had similar arrangements with other universities — although he declined to say how many or which ones.

Dr. Macrina also defended the requirement that the university decline comment and tell the company if asked about the agreement by news organizations and other third parties.

“Language like that occurs in agreements like this because the sponsor wants to be sure there are no slip-ups, that things will not be released inadvertently,” he said.

This is mindblowing in light of all of the public health information research tobacco companies have kept hidden from the public in the past, knowingly selling products they knew were addictive and caused cancer, but lying about it to the government and the public”

Tobacco Company Was Silent on Hazards

Internal documents from a major tobacco company show that executives struggled with whether to disclose to the Surgeon General what they knew in 1963 about the hazards of cigarettes, at a time when the Surgeon General was preparing a report saying for the first time that cigarettes are a major health hazard.

The research found that despite the beneficial effects of nicotine, cigarettes “cause, or predispose, lung cancer.

“They contribute to certain cardiovascular disorders,” the research found. “They may well be truly causative in emphysema, etc. etc.”

——————————

The industry long ago knew that nicotine was addictive, but kept its findings secret and consistently denied the fact, even as overwhelming evidence to the…” (Anyone have this JAMA article for free?)

Also, in how many disagreements and then lawsuits are plaintiffs basically bought off from disclosing any terms of anything in a settlement: silence bought for money, even when more transparency and publicity can mean preventing harm to others? Like this nondisclosure agreement a law firm wanted an employee to sign when she alleged numerous wrongdoings

A business is a business, but it takes very little to convey some level of humanity to carry out even the most difficult business decisions. We are human beings first before we are partners or associates. Had you simply explained that the department is unable to sustain the number of associates in the office, I would have completely understood. Had you explained that the office had been directed to reduce the number of associates and I was chosen because of my high billable rate and low billable hours, I would have appreciated such directness, even though the consequences of blindly raising billable rates to an unsustainable degree is plainly predictable. What I do not understand is the attempt to blame the associate for not bringing in the business that should have been brought in by each of you and to hide your personal failures by attempting to tarnish my excellent performance record and looking to undermine my sense of self esteem.

The last few months have been surreal, at best. Just last year, I had celebrated my engagement and marriage with many of you. In fact, during the engagement party, the head of the department took my then-fiancée aside to express to him what a great attorney I am and what a great future I faced. Indeed, less than a week before this year’s bizarre performance review, I was again told by the same partner that my work is great and that the slow business in no way reflected on my performance. A week later, I was given a mediocre performance review and told that I should worry about whether I have a future at Paul Hastings. When I asked for specific examples of my alleged deficiencies, I received no response. When I asked for an explanation as to why I had been downgraded in so many performance categories when I received absolutely no criticism throughout the year and my prior year’s review was stellar, I was told that my prior year’s performance assessment may have been “over-inflated.” What a startling response.

As for your request for a release, non-disclosure, and non-disparagement agreement in return for three months’ pay, I reject it. Unlike you, I am not just a paid mouthpiece with no independent judgment. I will decide how and to whom to communicate how you have treated me. I find it ironic that you would try to buy the right not to be disparaged after behaving as you have. Your actions speak volumes, and you don’t need much help from me in damaging your reputation.

Kudos to her, she didn’t take the money and sign the agreement, and went on to publicize the alleged wrongdoings, but she could afford to as a high-paid lawyer, how many people are hard up for money, take the money and sign the non-disclosure agreement, even when similar wrongs may be widespread? Such non-disclosure agreements can be especially pernicious where there are huge asymmetries of information, bargaining power, and collective action problems. We should seriously examine the ethics of such payoffs to keep people quite where injustice is alleged.

Some more cites later…does my public library have a free Lexis account for searching through law review articles? I kind of doubt it, I’ll have to check. If only there was a huge-ad supported online free law review article database…Google, are you on this?

Here’s a classic example:

A plaintiff’s lawyer’s dilemma: The ethics of entering a confidential settlement

“Many parties to litigation find settlement attractive because it provides a quick resolution to a dispute that could last for years if sent to trial. Confidentiality in settlement negotiations encourages complete disclosure and protects the privacy interests of one or both parties. Plaintiffs, in exchange for greater compensation and increased privacy, are sometimes willing to accept settlement agreements that involve the sealing of court documents. However, the public may suffer from these confidential settlements if a defendant repeatedly causes harm and then covers it up through confidential settlements. In the case of the recent sex abuse cases involving Catholic priests, the widespread incidence of sex abuse was not uncovered until years after the initial abuse because previous litigation had ended in confidential settlement.1 Is it the duty of the plaintiff’s attorney, then, to refuse to accept confidential settlements in cases that involve a danger to the public interest?”

And another article regarding confidentiality, scientific research, and the public interest:

Revealed: Food Companies Knew Products Were Addictive

ve known for years of research that suggests many of their products trigger chemical reactions in the brain which lead people to overeat, The Telegraph can reveal.

Scientists working for Nestle and Unilever have been quietly investigating how certain foods, such as chocolate biscuits, burgers and snacks, make people binge-eat, thereby fuelling obesity. The companies insist that there is no proof that the foods create bio-chemical reactions that make people eat too much. They are not yet prepared to issue consumer warnings or change the nature of the products.

Photo of Banksy art by Guano

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