A Case for Confidentiality: Why Recent Arguments Against Arbitration Anonymity May Be Misguided

This article was originally published in the February issue of the “On the Front Lines” newsletter by Annie Lau and Anthony E. Guzman II in San Francisco.

The assault on arbitration is old news. Recently, however, courts and commentators alike have seemed to stake out a new area for contest in the ongoing back and forth debate about this valuable litigation alternative: confidentiality clauses. For decades, confidentiality clauses have been a staple of most arbitration agreements, as well as most contracts. So as proponents of excluding confidentiality clauses argue that these clauses tend to “silence employees” or “hide wrongdoings” begin to emerge at both the national and state level, we should take care to critically examine these arguments and remember that confidentiality clauses have been the status quo for good reason. This article looks at why these arguments are being made, why there may still be good reason for confidentiality clauses despite these arguments, and how to account for these dueling perspectives in our own practices moving forward.