Pittsburgh-area shale settlement 'gag' questioned

Legal views differ on its effect on two youngsters
August 1, 2013 11:13 am
Pam Panchak/Post-Gazette
The Hallowich family in 2010, standing on a hillside near their home to illustrate the proximity of several gas wells around their property.

Click image to enlarge

By Don Hopey / Pittsburgh Post-Gazette
The non-disclosure agreement prohibiting Chris and Stephanie Hallowich from talking about the 2011 settlement of their high-profile Marcellus Shale damage case in Washington County, or saying anything about gas drilling and fracking, isn't unusual. It happens often in settling such cases.
But the insistence that their two minor children, then ages 7 and 10, are also bound by the "gag order" is.
Several independent legal scholars and attorneys involved in the Hallowich side of the case say they know of no other settlement agreements that gag the children of parents involved in legal settlements, and questioned whether such an agreement is enforceable.
Jessie Allen, an assistant professor of law at the University of Pittsburgh who teaches civil procedure, legal ethics and civil rights, said that while confidentiality agreements are common, involving children is not.
"It's right to react to this as strange and the lawyers involved reflect that when they say they've never seen that," Ms. Allen said. "My reaction is it's kind of over the top."
The rare prohibition against the Hallowichs and their children speaking about anything related to Marcellus Shale development was discussed at length in a new Washington County Common Pleas Court transcript of an August 2011 settlement hearing from which reporters for the Pittsburgh Post-Gazette were barred and during which case records were sealed.
As part of its efforts to unseal all of the Hallowich case records, the Post-Gazette recently requested a transcript of that closed-door hearing, and Washington County Court President Judge Debbie O'Dell Seneca granted that request. The hearing transcript was filed with the county's prothonotary Wednesday.
In addition to the concerns about the confidentiality agreement, the transcript shows the case records should have included a copy of the confidential settlement agreement, which was not among more than 900 pages of case documents that were ordered unsealed in March by Judge O'Dell Seneca.
According to the 16-page transcript, then-Washington County Judge Paul Pozonsky approved sealing the court records with the settlement agreement "attached thereto" in the private hearing held to settle the claims of the Hallowichs against Range Resources, Williams Gas/Laurel Mountain Midstream and MarkWest Energy.
"This shows clearly the settlement agreement was part of the record," said Frederick Frank, an attorney representing the Post-Gazette.
The Hallowichs, who had been longtime critics of shale gas drilling, claimed that Marcellus Shale gas development -- including four wells, gas compressor stations and a 3-acre water impoundment -- adjacent to their 10-acre farm in Mount Pleasant, Washington County, damaged their property value and their health, including that of their 7-year-old daughter and 10-year-old son. They said air and water contaminants caused them to experience burning eyes, sore throats, headaches and earaches, and contaminated their water supply.
The hearing transcript, which provides details of the $750,000 settlement paid to the family, shows the Hallowichs agreed to the terms of the settlement to remove their children from what they considered an unhealthy environment.
They also raised questions about the lifetime "gag order" that required the entire family to never discuss Marcellus Shale or fracking.
According to the transcript, the Hallowichs' attorney, Peter Villari, said that in 30 years of practicing law he never had seen a nondisclosure agreement that included minor children.
And, although he advised the Hallowichs to accept the settlement, he questioned if the children's First Amendment rights could be restricted by such an agreement.
Judge Pozonsky, who has since resigned, responded that he wasn't sure, adding, "That's a law school question, I guess."
James Swetz, the attorney representing Range Resources at the settlement hearing, then is quoted as saying: "I guess our position is it does apply to the whole family. We would certainly enforce it."
Harry Flechtner, a Pitt law professor, said Wednesday that enforcing such an agreement against minors raises questions.
"They are children and can't be bound by such an agreement, a contract, but the wild card is the court approval of the agreement," he said.
Matt Pitzarella, a Range Resources spokesman, said Wednesday that the comments by Mr. Swetz are "not something we agree with" and added "we don't believe the [Hallowich] settlement applies to children." He also said that Range has entered into no other nondisclosure agreements that bar children from speaking.
Mr. Swetz could not be reached for comment.
But Mr. Villari said Wednesday that Mr. Swetz told the court he "had the full authority to speak on his client's behalf," and all of the defendant shale gas development companies insisted that the Hallowich non-disclosure agreement "extended to the minor children," and are "still insisting on the full extent of those obligations."
"It's news to me that they say they are now releasing the children," he said, "but I'd appreciate it if they'd put that in writing. It would be very nice to do that."
Mr. Pitzarella emphasized the company's denial that its drilling operations caused any harm to the health of the Hallowichs.
"All of the reports done at the time indicated no exposure [from the gas development] and they never produced evidence of any health impacts," Mr. Pitzarella said. "We did say that clearly the Hallowichs were not in an ideal situation in terms of their lifestyle. They had an unusual amount of activity around them. We didn't want them in that situation."
He noted that as part of the settlement agreement, they willingly signed a document that stated the family's health was not affected by the gas operations.
Mr. Villari said that the settlement "would not have gone forward" if the Hallowichs refused to sign the document.
"The defendants required certain language. It was insisted upon," he said.
Asked how the Hallowichs' health is now, he said, "To my knowledge they're doing perfectly fine and not exhibiting any of those symptoms."
Erin McDowell, the attorney who represented MarkWest Energy Partners at the August 2011 hearing and at several subsequent court hearings concerning the Hallowichs, did not respond to a request for comment Wednesday.
MarkWest spokesmen in Pittsburgh and Denver also did not return calls seeking comment.