When Arbitration Confidentiality Meets Congressional Testimony

Confidentiality is one of the features that often attracts parties to arbitration.

For businesses, executives, employees, and consumers, arbitration may offer a quieter forum than court. Sensitive allegations can be addressed outside the public docket. Internal documents may be exchanged under a protective order. Testimony, briefs, discovery materials, and awards may be treated as confidential. In the right case, that privacy can be valuable.

But confidentiality is not absolute.

A recent decision from the United States Court of Appeals for the District of Columbia Circuit in Chishti v. Spottiswoods provides an important reminder: arbitration confidentiality provisions and arbitral protective orders do not necessarily shield testimony or materials from disclosure when Congress seeks information for legislative purposes.

That point matters not only for lawyers who draft arbitration agreements, but also for parties who rely on arbitration confidentiality as part of their dispute-resolution strategy.

The Arbitration Background

The dispute arose from a highly public employment-related controversy involving a technology company executive, a former employee, and allegations of sexual misconduct. The employee’s employment agreement contained an arbitration clause requiring future claims against the company and its officers to be resolved in confidential arbitration under American Arbitration Association rules.

The parties later proceeded through arbitration. During that arbitration, the arbitrator issued protective orders addressing confidentiality and the disclosure of arbitration materials. Ultimately, the arbitration resulted in an award in favor of the former employee.

More than two years later, Congress was considering legislation addressing forced arbitration of sexual assault and sexual harassment claims. The former employee was subpoenaed to testify before the House Judiciary Committee. She submitted written testimony and appeared publicly before Congress. Her testimony related to the pending legislation and to her own experience with forced arbitration.

After the hearing, the President signed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act. Later, after the executive challenged the accuracy of the employee’s testimony and suggested that Congress had not sufficiently reviewed the underlying evidence, the Chairman of the House Judiciary Committee requested a copy of the arbitration award to ensure accuracy in the congressional record and to inform the Committee’s ongoing work. The award was provided and later placed in the Congressional Record.

The executive and his wife then sued the former employee, her lawyers, and others. Among other claims, the lawsuit alleged defamation, false light, breach of contract, tortious interference, abuse of process, intentional infliction of emotional distress, conspiracy, and loss of consortium. The breach of contract theory centered on alleged violations of the arbitration protective orders.

The district court dismissed the claims, and the D.C. Circuit affirmed.

The Legislative Privilege

The core issue for the congressional testimony was privilege.

Under District of Columbia law, the court recognized an absolute common law privilege for witnesses who provide information to a legislative body. The privilege protects defamatory statements made as part of legislative proceedings, or in communications preliminary to those proceedings, so long as the statements have some relation to the legislative proceeding.

That protection is powerful.

The court concluded that the former employee’s oral and written testimony before the House Judiciary Committee plainly related to Congress’s consideration of pending legislation concerning forced arbitration of sexual assault claims. Her statements were made pursuant to a congressional subpoena and were intended to inform the legislative body on a subject within its jurisdiction.

The court also rejected the argument that alleged bad faith defeated the privilege. Even if a witness has a personal motive, litigation motive, or reputational motive, the privilege may still apply if the communication also has the required intent to inform the legislature.

That is a significant point. In many high-stakes disputes, parties will disagree sharply about motives. One side may characterize testimony as civic participation. The other may characterize it as retaliation, leverage, or reputational warfare. The D.C. Circuit’s analysis makes clear that the legislative privilege is not defeated simply because the speaker may have mixed motives.

For attorneys and clients, the lesson is direct: when Congress solicits testimony on a matter within its legislative authority, private arbitration confidentiality does not necessarily prevent a witness from speaking.

The Breach of Contract Claim

The more important arbitration issue may be the court’s treatment of the breach of contract claim.

The executive argued that the former employee violated arbitral protective orders by disclosing confidential arbitration materials to Congress, including by providing the arbitration award to the House Judiciary Committee Chairman.

The court rejected most of the alleged breaches at the outset. One protective order permitted the former employee to speak with certain family members and professionals about matters related to the arbitration. Another protective order restricted the disclosure of defined “Confidential Material,” but the court emphasized that the order did not broadly prohibit disclosure of all “confidential information.” That distinction mattered. Not every statement about the existence, nature, or factual background of the arbitration was necessarily a disclosure of protected material under the order.

The remaining issue was the actual provision of the arbitration award to Congress. That was the strongest version of the breach claim because the award itself was included within the protective order’s definition of confidential material.

Even there, the court held that the claim could not proceed.

The reason was not that arbitration protective orders are meaningless. The reason was that the legislative privilege extended to the circumstances presented. The award was provided in response to a request from the House Judiciary Committee Chairman, after the executive had written to Congress challenging the accuracy of the testimony and suggesting that the Committee had not reviewed the underlying evidence. The Chairman requested the award to ensure the accuracy of the congressional record and to inform the Committee’s continuing work concerning workplace sexual violence and harassment.

The court concluded that applying the privilege to the breach claim was consistent with the purpose of the legislative privilege. If a witness could be sued for breach of contract for providing requested materials to Congress in those circumstances, the privilege would be hollow. Witnesses could be deterred from providing information needed by Congress. Legislative fact-gathering would be impaired. Private confidentiality obligations could become a tool to suppress information relevant to public lawmaking.

That is the practical takeaway from the decision.

Confidentiality provisions and arbitral protective orders matter. But they are not absolute shields against disclosure when Congress seeks testimony or materials for legislative purposes.

Why This Matters for Arbitration Users

Arbitration confidentiality often creates expectations that everything about the proceeding will remain private. That expectation may be understandable, but it can be overstated.

Arbitration confidentiality can arise from several sources: the arbitration agreement, institutional rules, protective orders, confidentiality agreements, employment agreements, settlement terms, or separate nondisclosure provisions. Each source has its own language and limits. Some provisions restrict only discovery materials. Some restrict testimony. Some restrict the award. Some contain exceptions for law enforcement, regulators, courts, subpoenas, or legal process. Some are silent on legislative inquiries.

When a dispute later intersects with public policy, regulatory oversight, criminal investigation, congressional inquiry, or legislative reform, private confidentiality provisions may yield to other legal principles.

The D.C. Circuit decision is particularly important because it arose in the context of congressional consideration of legislation directed at forced arbitration itself. The testimony was not merely about a private dispute. It was connected to a legislative debate over whether certain claims should be subject to mandatory arbitration agreements at all.

That context mattered. Congress was gathering information about the real-world operation of forced arbitration provisions in sexual assault and sexual harassment disputes. The witness’s testimony and the later production of the award were connected to that legislative process.

Protective Orders Should Be Drafted Carefully

The decision also underscores the importance of careful drafting.

A protective order that refers to “Confidential Material” may not cover every piece of information a party considers sensitive. A party may assume that the entire arbitration is sealed off from public discussion, but the actual order may be narrower. It may protect materials produced or generated in the arbitration while leaving room for discussion of underlying facts, personal experiences, or information obtained outside the arbitration process.

That distinction can be critical.

Counsel should be precise about what is protected. Does the order cover discovery materials only? Pleadings? Briefs? Testimony? Transcripts? Correspondence? Orders? The award? The existence of the arbitration? The factual allegations? Information learned independently from the arbitration?

Counsel should also address exceptions. What happens if a party receives a subpoena? What if Congress requests testimony? What if a regulator asks for documents? What if a court orders production? What if a party must respond to public accusations? Must the producing party give notice before disclosure? Is there an opportunity to object or seek relief? Does the arbitrator retain authority to resolve disputes over disclosure?

No protective order can anticipate every future event. But clearer drafting reduces uncertainty.

Confidentiality Cannot Be Used to Defeat Legislative Oversight

There is a broader point as well.

Arbitration is a private dispute-resolution process, but it operates within a public legal system. Courts enforce arbitration agreements. Legislatures define the rules governing arbitration. Congress may investigate how arbitration affects employees, consumers, businesses, and the administration of justice. When Congress seeks information relevant to legislation, private confidentiality obligations may not carry the same force they have between the parties in ordinary circumstances.

That does not mean parties are free to disregard confidentiality whenever disclosure might be useful or interesting. Nor does it mean that every disclosure to a public official is automatically protected. The details matter: who requested the information, why it was requested, how it relates to legislative business, what the governing confidentiality provision says, and what privilege or immunity applies.

But the decision makes clear that arbitral confidentiality cannot be assumed to override legitimate legislative fact-gathering.

That is especially important in cases involving claims that have broader public-policy implications. Employment disputes, sexual harassment claims, consumer disputes, mass arbitration issues, civil rights claims, healthcare disputes, and claims involving public safety may all attract legislative or regulatory interest. Parties who assume that arbitration will permanently keep every aspect of the dispute private may be surprised.

The Limits of Post-Arbitration Litigation

The decision also illustrates the difficulty of using later civil litigation to reframe or relitigate the consequences of arbitration-related disclosures.

The D.C. Circuit described the lawsuit as an effort to undo the practical impact of an arbitration that had not gone the executive’s way. The court rejected the defamation and false light theories based on the legislative privilege, First Amendment protections, and the fair reporting privilege. It rejected the breach of contract claim where the alleged disclosure was protected by the legislative privilege or did not violate the protective orders as pleaded. It also rejected related tort claims as duplicative of the defamation theory or dependent on failed underlying torts.

For parties disappointed by what happens after arbitration, the message is important. A confidentiality provision may support a claim in the right case. But it cannot necessarily be used to punish testimony to Congress, prevent legislative fact-gathering, or recast privileged communications as contract damages.

Practical Lessons for Counsel and Clients

For counsel drafting arbitration agreements and protective orders, the decision suggests several practical steps.

First, do not treat confidentiality language as boilerplate. Define the protected material carefully.

Second, include clear exceptions for subpoenas, court orders, regulatory requests, legislative inquiries, and other compulsory process.

Third, provide a notice procedure so that, where appropriate, the parties can seek relief before disclosure occurs.

Fourth, distinguish between underlying facts and materials generated in arbitration. A party may be restricted from producing an arbitration transcript or award but still able to describe personal experiences or facts known independently.

Fifth, advise clients that arbitration confidentiality has limits. It may reduce public exposure, but it does not guarantee that a dispute will never surface in a legislative, regulatory, judicial, or public-policy setting.

For clients, the broader lesson is that confidentiality should be understood as a legal tool, not a force field. It has value. It can protect sensitive information. It can promote candid participation in arbitration. But it cannot always prevent disclosure when another branch of government seeks information for a legitimate public purpose.

Conclusion

The D.C. Circuit’s decision is a useful reminder that arbitration confidentiality exists within a larger legal framework.

Private parties may agree to arbitrate. They may agree to keep proceedings confidential. Arbitrators may enter protective orders restricting disclosure of arbitration materials. Those agreements and orders matter.

But they do not necessarily control what happens when Congress requests testimony or materials for legislative purposes. In that setting, witness privilege, legislative fact-gathering, and the public interest in informed lawmaking may override private expectations of confidentiality.

For attorneys and clients, the takeaway is straightforward: confidentiality provisions and arbitral protective orders should be respected, but they should not be oversold. They are important protections. They are not absolute shields.

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