Un-fracking-believable

You may have seen this Guardian article about a lifetime “gag order” being imposed on children which purports to prevent them from ever talking about fracking. I should emphasise that this isn’t a Court imposed order, as such. It’s a term of a Settlement Agreement between the parties to a dispute, although according to the Court transcript, the Defence made it clear that the Claimants would have to agree to this if they wanted to settle the claim at all.

The position here in England is that a minor who signs a contract can enforce it but it is much less likely it will be enforced against them. However, in this case, the minors aren’t signing the Settlement Agreement themselves. It’s being signed on their behalf by their parents. It’s arguable that the whole system would grind to a halt if decisions taken by parents on behalf of their minor children during Court proceedings couldn’t then be enforced later on. The difficulty here is that the restrictions are so broad if the gag on commenting on “Marcellus Shale/fracking activities” should properly be read as “Marcellus Shale or any fracking activities”, rather than “Marcellus Shale or its fracking activities”. The Claimants’ Attorney believed that the broader interpretation was intended:

“Mother: My concern is they’re minors. I’m not quite sure I fully understand. We know we’re signing for silence forever, but how is this taking away our children’s rights being minors now? I mean, my daughter is turning 7 today, my son is 10. How — I guess that concerns me that we need to keep them safe, but —
THE COURT: Do you want to address that?
MR. VILLARI: I have counseled both Chris and Stephanie, as drafted, the order could be read to forever bar their two children from ever commenting on anything to do with fracking or Marcellus Shale. I have counseled them that they are minors. I, frankly, Your Honor, as an attorney, to be honest with you, I don’t know if that’s possible that you can give up the First Amendments rights of a child. I don’t know. The defense has requested that be a part of the petition as worded. I will tell you honestly we objected, but again it was a take it or leave it situation and these people have made, I think, a wise decision on behalf of their family. They continue to offer this concern to defense.”

It’s one thing to agree not to disclose anything related to the case itself but an agreement never to talk about a hot topic energy source seems obscenely wide if that’s really what they’re agreeing to. I could see Courts being reluctant to enforce a contract which imposes such a wide restriction on the fundamental right to free speech, even if the parents entered into it in good faith in the interests of and on behalf of the children. The transcript indicates the Claimants’ Attorney was keen to stress his reservations (I can hardly blame him for feeling the need to do some ass covering):

“MR. VILLARI: But I will tell you as an attorney, I just don’t know whether you can affect the First Amendment rights of a minor in a proceeding like this, and the agreement does do that, in my opinion. That’s why I have counseled them. I have told them in an abundance of caution, and I’ll be frank with you, to protect my law firm because I don’t feel like someone coming around when they turn 18 and saying, “Look what you did to me.” The fact remains as written it could easily be used against the two of them when they become of majority. I think that does –“

and the Judge himself said:

“Nor does the Court have an answer for you, and I would agree with counsel that I don’t know. That’s a law school question, I guess.”

I don’t know either. it’s possible that the level of compensation given under the Settlement Agreement has been uplifted to take account of the restrictions. Maybe a Judge would enforce it on the basis that it would be inequitable for the children to take the money and run. What’s clear from the transcript is that the Judge, the Claimants’ Attorney and the Claimants themselves had concerns over enforceability. The Defence is taking a pretty big risk if it hasn’t hedged it’s bets and offered an alternative to a complete lifetime gag in the Settlement Agreement (we’ve got no way of knowing if it did) because a Judge could potentially strike out the entire non-disclosure clause, rather than amending it into line with the law. I assume that Agreement does include a provision saying if anything is unenforceable it should only be amended to the extent needed to bring it into line with the law so that only the unenforceable portions are deleted and not the whole of the non-disclosure provisions though.

I can’t imagine ever doing this and I practice in England so I’m not sure if there’s something I’m missing about the law in Pennsylvania (it doesn’t seem like it, from the transcript) but, if it was me here’s what I think (off the top of my head) I’d do if I wanted to strengthen the non-disclosure provisions I was imposing. Firstly, I’d be a damned sight clearer about what can’t be discussed than it seems from the transcript they have been. I’d advise against extending the requirement to all fracking but, if that’s what I was instructed to do, I wouldn’t word it the way they seem to have done. I’d also (*puts evil lawyer hat on*) want the Settlement Agreement to say:-

a. In addition to the parents’ obligation not to discuss fracking, they will use best endeavours to procure that their children don’t. If the children do discuss fracking, you then have to look at what steps were taken (eg did the parents ask their children’s school not to include the children in discussions on fracking). Inevitably you’d have an argument over what constitutes best endeavours (should the parents demand a copy of the curriculum and exclude their children from school on a day when fracking is being discussed, for instance – how would that weigh against truancy measures?) and it’s easier to prove the children said something about fracking than whether the parents took steps to prevent them doing so but at least you’re imposing responsibility on responsible adults if you do that. That’s effectively what the parents themselves say in the transcript: we’ll try but we can’t control every aspect of our children’s daily lives. Adding this to the blanket gag on the children at least gives the Defence an alternative method of enforcement if the broader gag on the children is found to be unenforceable;

b. If my client wanted a lifetime gag to be imposed on the children, I’d suggest holding back a portion of the damages under the terms of the Settlement Agreement. If 80% is released now, the remaining 20% could be released in two tranches as each child reaches 18 (or 90-10, whatever) on condition that the relevant child, now able to sign away their right to free speech themselves, must now expressly confirm their agreement to the non-disclosure obligations. You run the risk that the children say “no thanks. I’d rather be able to speak out against you” but you’d still potentially be able to hold the adult children to ransom by saying the parents are failing to use best endeavours to stop them if the children were tempted to do that. I’m very glad I’ve never been asked by a client to come up with such a singularly unpleasant solution though.

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