Feb 2, 2022
Privileged Remarks (Determining the Scope of a Nondisparagement Clause in a Settlement Agreement)
Nondisparagement clauses are commonly used in settlement agreements. Some clauses are simple one-liners such as “The parties agree not to disparage each other.” The agreement in Monster Energy Co. v. Schechter (2019) 7 Cal.5th 781 had a more detailed clause that did not limit “Plaintiffs’ attorneys’ ability to disparage (within the confines of the law) Defendants or Defendants’ products in connection with other current or future litigation against the Released Parties in any jurisdiction and venue” or “Plaintiffs’ attorneys’ prosecution of other current or future litigation against the Released Parties in any jurisdiction and venue.”
So how is the scope of a simple nondisparagement clause determined?