Parties frequently use settlement agreements to restrict or prohibit potentially harmful conduct, such as disparagement. While non-disparagement provisions in settlement agreements are commonplace, the specific language used in such provisions is critically important, because it is the text of those provisions that determines which specific conduct is restricted or prohibited.
In SA Luxury Expeditions v. Schleien, a tour operator who had entered into a settlement agreement with a competitor sued the competitor, alleging breach of a non-disparagement clause in their settlement agreement. Specifically, the tour operator alleged that the competitor had published online reviews that cast doubt on the value of the tour operator’s services. The tour operator also asserted unfair competition claims against the competitor based on an allegedly high volume of fraudulent clicks and leads that had imposed higher costs on the tour operator.
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