59–006 

114TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 2d Session 114–613 

TRUTH IN SETTLEMENTS ACT OF 2015 

JUNE 9, 2016.—Committed to the Committee of the Whole House on the State of 

the Union and ordered to be printed 

Mr. CHAFFETZ, from the Committee on Oversight and Government 

Reform, submitted the following 

R E P O R T 

[To accompany S. 1109] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on Oversight and Government Reform, to whom 

was referred the bill (S. 1109) to require adequate information regarding the tax treatment of payments under settlement agreements entered into by Federal agencies, and for other purposes, 

having considered the same, report favorably thereon without 

amendment and recommend that the bill do pass. 

CONTENTS 

Page 

Committee Statement and Views ........................................................................... 1 

Section-by-Section .................................................................................................... 4 

Committee Consideration ........................................................................................ 5 

Roll Call Votes ......................................................................................................... 5 

Application of Law to the Legislative Branch ....................................................... 5 

Statement of Oversight Findings and Recommendations of the Committee ...... 5 

Statement of General Performance Goals and Objectives .................................... 6 

Duplication of Federal Programs ............................................................................ 6 

Disclosure of Directed Rule Makings ..................................................................... 6 

Federal Advisory Committee Act ............................................................................ 6 

Unfunded Mandate Statement ............................................................................... 6 

Earmark Identification ............................................................................................ 6 

Committee Estimate ................................................................................................ 6 

Budget Authority and Congressional Budget Office Cost Estimate .................... 7 

Changes in Existing Law Made by the Bill as Reported ...................................... 8 

COMMITTEE STATEMENT AND VIEWS

PURPOSE AND SUMMARY

S. 1109, the Truth in Settlements Act of 2015, requires federal 

agencies to make public non-confidential information about settleVerDate Sep 11 2014 00:25 Jun 14, 2016 Jkt 059006 PO 00000 Frm 00001 Fmt 6659 Sfmt 6602 E:\HR\OC\HR613.XXX HR613

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1See e.g. U.S. Dep’t. of Justice, Press Release, Bank of America to Pay $16.65 Billion in Historic Settlement for Financial Fraud Leading up to and During the Financial Crisis (Aug. 21, 

2014) available at: https://www.justice.gov/opa/pr/bank-america-pay-1665-billion-historic-justice-department-settlement-financial-fraud-leading. 2 U.S. PIRG, Subsidizing Bad Behavior (Jan. 2013), available at: http://www.uspirg.org/ 

sites/pirg/files/reports/Subsidizing%20Bad%20Behavior%20USPIRG%20EF.pdf. 3Letter from Bob Goodlatte, Chairman, Comm. on Judiciary, Jeb Hensarling, Chairman, 

Comm. on Financial Services, Tom Marino, Chairman, Comm. on Judiciary Subcomm. on Regulatory Reform, Commercial and Antitrust Law, and Sean Duffy, Chairman, Comm. on Financial 

Services Subcomm. on Oversight and Investigations to Loretta E. Lynch, Attorney General, U.S. 

Dep’t. of Justice (May 14, 2015), available at: https://judiciary.house.gov/wp-content/uploads/ 

2016/02/051415-BG-JH-TM-SD-Letter-to-AG-Lynch.pdf. 4 Id. 5 Id. 

6 U.S. PIRG 

7 Id. 

ment agreements to ensure transparency in settlement agreements 

entered into by the federal government. The bill also restricts agencies from communicating misleading information about settlement 

agreements regarding violations of federal law by nongovernment 

entities. 

BACKGROUND AND NEED FOR LEGISLATION

Settlement agreements are a common tool used to manage alleged violations of law. The federal government uses settlements 

for allegations against both federal agencies and nonfederal entities. In either case, the lack of transparency in the process and 

terms of the agreement can prevent public understanding and oversight of these binding legal agreements. 

Executive agencies have publicly announced settlements, often 

touting large aggregate payments, without providing much detail 

as to how the amount is distributed.1 In many instances, federal 

agencies inflate prosecutorial success by claiming large settlement 

numbers, which suggests to the public that the federal government 

is receiving the full amount.2 S. 1109 requires greater transparency 

into federal settlements and ensures that the federal government 

will provide an honest assessment about agreements actually 

reached. 

One factor in determining the amount paid to the federal government through federal settlements between agencies and private 

businesses is payments to third parties. Some settlements include 

payments made by the nonfederal settling party to parties not involved in the settlement.3 Payments to third parties through federal settlements subvert the Congressional budget and appropriations processes, giving broad discretion to executive agencies to distribute federal funds.4 With the prospect of payouts, organizations 

advocate for the inclusion of third party payments in settlements, 

creating conflicts of interest in the settlement process.5

Another complicating factor that might inflate the dollar 

amounts aggregated by agencies is the determination of the tax 

status of those settlement payments. If the payment is a penalty 

or fine for wrongdoing, the business is prohibited from claiming the 

settlement as a business expense.6 However, if the payment is simply a business decision to make a payment in exchange for avoiding 

litigation, the settlement could be considered a business expense, 

thus making it tax deductible. Tax deductible settlements mean 

that the net amount received by the federal government is much 

less than the headlines suggest.7


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8 U.S. Chamber of Commerce, Sue and Settle: Regulating Behind Closed Doors, (May 2013), 

available at https://www.uschamber.com/sites/default/files/documents/files/ 

SUEANDSETTLEREPORT-Final.pdf. 9 Id. 10 Id. 11 Id. 12 Id. 

One final factor which may inflate the total dollar amount of settlements is the inclusion of credits for conduct. An agency may 

agree to provide credits for engaging in mitigating or remedial behavior going forward. However, the settling corporation may have 

engaged in that conduct for business purposes even absent the settlement agreement (e.g., an agency may provide a dollar credit for 

each dollar of a mortgage a lender forgives, but if a borrower is unable to pay the lender may otherwise have forgiven and written 

down that mortgage dollar). S. 1109 requires agencies to include a 

detailed description of any actions a settling party may take in lieu 

of payments. 

S. 1109 enhances transparency into the actual amount received 

by the federal government by requiring non-confidential settlements to be published online and by requiring federal agencies to 

issue a written public explanation when they deem all or part of 

a covered settlement agreement confidential. S. 1109 also requires 

agencies to report publicly how much of the total amount, if any, 

is expressly not tax deductible. The bill prevents agencies from 

issuing written public statements that provide an aggregate 

amount to be paid under a settlement without specifying how those 

payments are classified (e.g., as a penalty, fine, compensatory damages, restitution, etc.). 

In addition to concerns about inflated settlement amounts for allegations against nonfederal entities, S. 1109 addresses concerns 

about the use of settlements to subvert the regulatory process. The 

ordinary process for adopting or substantially modifying regulations is designed to allow the public to examine a rule, offer comments, and understand the regulating agency’s rationale for the 

change. However, in recent years, a detour around the ordinary 

process has emerged: settlement agreements with special interest 

groups, or ‘‘Sue and Settle.’’ 8 Sue and Settle agreements are a 

means to enacting a stricter regulation in a nontransparent and 

uninformed manner.9

In a typical Sue and Settle case, a special interest group sues a 

federal agency for allegedly failing to follow a legal requirement to 

issue regulations.10 Agencies decline to vigorously defend the lawsuit, instead entering into negotiations with the special interest 

group.11 From those negotiations, the agency enters into a settlement agreement that may set deadlines to issue regulations, or 

otherwise impose requirements about the issuance of a regulation, 

without the benefit of the regulatory notice and comment process. 

In some cases, those settlement agreements can even contain payments for attorney fees or expenses, funding the special interest 

group’s activities. 

One study found that between 2009 and 2012, the Environmental Protection Agency (EPA) settled over 60 Sue and Settle 

cases on terms favorable to the plaintiffs. Those settlements required the EPA to issue 100 new regulations.12 According to the 

U.S. Chamber of Commerce, the ten most expensive of those rules 


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13 Id. 14 U.S. Government Accountability Office, Environmental Litigation: Impact of Deadline Suits 

on EPA’s Rulemaking is Limited, (Dec. 2014) (GAO–15–34). 

will collectively cost the economy more than $100 billion annually.13 A Government Accountability Office (GAO) study on such 

EPA cases found that these suits ‘‘affect the timing and order in 

which rules are issued but not which rules are issued.’’ 14

Given the importance of Sue and Settle cases and the effect of 

such cases on the regulatory process, the public must, at a minimum, know some basic facts about the settlement agreements. S. 

1109 would require each federal agency to release a list on its 

website containing, for each settlement agreement above a reasonable monetary threshold, the names of the parties, a description of 

their claims, and details about money to be paid pursuant to the 

settlement. 

LEGISLATIVE HISTORY

S. 1109, the Truth in Settlements Act of 2015, was introduced on 

April 28, 2015 by Senator Elizabeth Warren (D–MA). Senators 

James Lankford (R–OK) and Tammy Baldwin (D–WI) are cosponsors. The bill was referred to the Senate Committee on Homeland 

Security and Governmental Affairs (HSGAC), which favorably reported the bill on July 7, 2015. On September 21, 2015, S. 1109 

passed the Senate by unanimous consent with an amendment offered by Senator David Vitter (R–LA). The House received the bill 

on September 22, 2015 and the bill was referred to the House Committee on Oversight and Government Reform. The Committee reported S. 1109 by unanimous consent on March 1, 2016. 

On June 4, 2015, Congressman Matt Cartwright (D–PA) introduced identical legislation in the House, H.R. 2648, which was referred to both the Committee on Oversight and Government Reform and in addition to the Committee on Financial Services. 

In the 113th Congress, Senator Warren and Senator Tom Coburn 

(R–OK), and Congressman Cartwright and Congressman Tom Cole 

(R–OK) introduced the Truth in Settlements Act of 2014 in the 

Senate and House, S. 1898 and H.R. 4324 respectively. S. 1898 was 

referred to HSGAC and favorably reported to the full Senate for 

consideration. No further action was taken on S. 1898. H.R. 4324 

was referred to the Committees on Oversight and Government Reform and Financial Services. No further action was taken in the 

House. 

SECTION-BY-SECTION

Section 1. Short title 

Designates the short title of the bill as the ‘‘Truth in Settlements 

Act of 2015’’. 

Section 2. Information regarding settlement agreements entered into 

by federal agencies 

Adds section 307 to title 5, United States Code. Section 307 does 

the following: 

Defines covered settlement agreement as either (1) a settlement 

related to an alleged violation of federal civil or criminal law that 

requires a non-federal person to pay $1 million or more, or (2) a 


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settlement related to rulemaking or an alleged failure to engage in 

rulemaking and requires a payment of attorney fees and costs of 

$200,000 or more. 

Requires a list of each covered settlement agreement to be posted 

on the agency’s website with the following information about each 

settlement, as long as the information is not confidential: the date, 

the names of the parties, a description of the claims, the amount 

parties are obligated to pay including both what is expressly a penalty or fine and what is expressly not tax deductible, and a description of where payments will be deposited, and a copy of each settlement agreement. 

Requires the information about settlement agreements to be 

posted on the website for at least five years and a copy of each settlement agreement to be available for at least a year, or five years 

if the required payment is $50 million or more. 

Requires agencies that enter into settlement agreements that include confidentiality agreements to issue a public statement explaining why such action is required. 

Establishes requirements for public statements issued by an 

agency about a settlement agreement. 

Limits disclosure requirements to information and settlements 

that are not subject to a confidentiality agreement. 

Requires each agency to submit an annual report to Congress 

with information about settlements entered into in the prior fiscal 

year and to make such report publicly available in a searchable format on agency’s website. 

Requires the GAO to report to Congress information regarding 

how agencies determine whether a settlement agreement will be 

treated as confidential and offer any recommendations to increase 

transparency while continuing to protect legitimate interests that 

confidentiality provisions serve. 

COMMITTEE CONSIDERATION

On March 1, 2016, the Committee met in open session and ordered reported favorably the bill, S. 1109, by unanimous consent. 

ROLL CALL VOTES

No roll call votes were requested or conducted during Full Committee consideration of S. 1109. 

APPLICATION OF LAW TO THE LEGISLATIVE BRANCH

Section 102(b)(3) of Public Law 104–1 requires a description of 

the application of this bill to the legislative branch where the bill 

relates to the terms and conditions of employment or access to public services and accommodations. This bill requires disclosure by 

federal agencies of the executive branch. As such this bill does not 

relate to employment or access to public services and accommodations. 

STATEMENT OF OVERSIGHT FINDINGS AND RECOMMENDATIONS OF

THE COMMITTEE

In compliance with clause 3(c)(1) of rule XIII and clause (2)(b)(1) 

of rule X of the Rules of the House of Representatives, the CommitVerDate Sep 11 2014 00:25 Jun 14, 2016 Jkt 059006 PO 00000 Frm 00005 Fmt 6659 Sfmt 6602 E:\HR\OC\HR613.XXX HR613

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tee’s oversight findings and recommendations are reflected in the 

descriptive portions of this report. 

STATEMENT OF GENERAL PERFORMANCE GOALS AND OBJECTIVES

In accordance with clause 3(c)(4) of rule XIII of the Rules of the 

House of Representatives, the Committee’s performance goal and 

objective of the bill is to require adequate information regarding 

the tax treatment of payments under settlement agreements entered into by Federal agencies. 

DUPLICATION OF FEDERAL PROGRAMS

No provision of this bill establishes or reauthorizes a program of 

the Federal Government known to be duplicative of another Federal program, a program that was included in any report from the 

Government Accountability Office to Congress pursuant to section 

21 of Public Law 111–139, or a program related to a program identified in the most recent Catalog of Federal Domestic Assistance. 

DISCLOSURE OF DIRECTED RULE MAKINGS

The Committee estimates that enacting this bill does not direct 

the completion of any specific rule makings within the meaning of 

5 U.S.C. 551. 

FEDERAL ADVISORY COMMITTEE ACT

The Committee finds that the legislation does not establish or 

authorize the establishment of an advisory committee within the 

definition of 5 U.S.C. App., Section 5(b). 

UNFUNDED MANDATE STATEMENT

Section 423 of the Congressional Budget and Impoundment Control Act (as amended by Section 101(a)(2) of the Unfunded Mandate 

Reform Act, P.L. 104–4) requires a statement as to whether the 

provisions of the reported include unfunded mandates. In compliance with this requirement the Committee has received a letter 

from the Congressional Budget Office included herein. 

EARMARK IDENTIFICATION

This bill does not include any congressional earmarks, limited 

tax benefits, or limited tariff benefits as defined in clause 9 of rule 

XXI. 

COMMITTEE ESTIMATE

Clause 3(d)(1) of rule XIII of the Rules of the House of Representatives requires an estimate and a comparison by the Committee of the costs that would be incurred in carrying out this bill. 

However, clause 3(d)(2)(B) of that Rule provides that this requirement does not apply when the Committee has included in its report 

a timely submitted cost estimate of the bill prepared by the Director of the Congressional Budget Office under section 402 of the 

Congressional Budget Act of 1974. 


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BUDGET AUTHORITY AND CONGRESSIONAL BUDGET OFFICE COST

ESTIMATE

With respect to the requirements of clause 3(c)(2) of rule XIII of 

the Rules of the House of Representatives and section 308(a) of the 

Congressional Budget Act of 1974 and with respect to requirements 

of clause (3)(c)(3) of rule XIII of the Rules of the House of Representatives and section 402 of the Congressional Budget Act of 

1974, the Committee has received the following cost estimate for 

this bill from the Director of Congressional Budget Office: 

MARCH 24, 2016. 

Hon. JASON CHAFFETZ, 

Chairman, Committee on Oversight and Government Reform, 

House of Representatives, Washington, DC. 

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for S. 1109, the Truth in Settlements Act of 2015. 

If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contact is Matthew Pickford. 

Sincerely, 

KEITH HALL. 

Enclosure. 

S. 1109—Truth in Settlements Act of 2015 

S. 1109 would establish new requirements for the public disclosure of settlement agreements entered into by federal agencies. 

Specifically, the legislation would require that nonconfidential settlements be posted online if they involve payments from nonfederal 

entities that are greater than $1 million and are related to a violation of civil or criminal laws. Each settlement posted online would 

have to include the names of the parties involved, a description of 

the claims settled, the amount to be paid, and whether the settlement is a criminal penalty, a civil penalty, or a fine. In addition, 

S. 1109 would require the Government Accountability Office (GAO) 

to complete a report on the confidentiality of settlement agreements. 

CBO estimates that enacting S. 1109 would have no significant 

effect on the federal budget because most of the information required is already collected during the settlement process and the 

cost of making it available online would not be significant. CBO 

also estimates that the cost for GAO to prepare the required study 

would be less than $500,000. Because enacting S. 1109 could affect 

direct spending by agencies not funded through annual appropriations, pay-as-you-go procedures apply. CBO estimates that any net 

changes in spending by those agencies would be negligible. Enacting the legislation would not affect revenues. 

CBO estimates that enacting S. 1109 would not increase direct 

spending or on-budget deficits in any of the four consecutive 10- 

year periods beginning in 2027. 

S. 1109 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act and would 

not affect the budgets of state, local, or tribal governments. 

On May 20, 2015, CBO transmitted an estimate for S. 1109, as 

ordered reported by the Senate Committee on Homeland Security 


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and Governmental Affairs on May 6, 2015. The two versions of the 

legislation are similar, and CBO’s estimates of the budgetary effects are the same. The previous version of the legislation also contained a private-sector mandate that is not included in this version 

of the act. 

The CBO staff contact for this estimate is Matthew Pickford. The 

estimate was approved by H. Samuel Papenfuss, Deputy Assistant 

Director for Budget Analysis. 

CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

In compliance with clause 3(e) of rule XIII of the Rules of the 

House of Representatives, changes in existing law made by the bill, 

as reported, are shown as follows (new matter is printed in italics 

and existing law in which no change is proposed is shown in 

roman): 

TITLE 5, UNITED STATES CODE 

* * * * * * * 

PART I—THE AGENCIES GENERALLY 

* * * * * * * 

CHAPTER 3—POWERS 

Sec. 

301. Departmental regulations. 

* * * * * * * 

307. Information regarding settlement agreements. 

* * * * * * * 

§ 307. Information regarding settlement agreements 

(a) DEFINITIONS.—In this section— 

(1) the term ‘‘covered settlement agreement’’ means a settlement agreement (including a consent decree)— 

(A) that is entered into by an Executive agency; and 

(B)(i) that— 

(I) relates to an alleged violation of Federal civil or 

criminal law; and 

(II) requires the payment of a total of not less than 

$1,000,000 by 1 or more non-Federal persons; or 

(ii) that— 

(I) relates to the rule making process of the Executive 

agency or an alleged failure by the Executive agency to 

engage in a rule making process; and 

(II) requires the payment of a total of not less than 

$200,000 in attorney fees, costs, or expenses by the Executive agency or entity within the Federal Government 

to a non-Federal person; 

(2) the term ‘‘entity within the Federal Government’’ includes 

an officer or employee of the Federal Government acting in an 

official capacity; 

(3) the term ‘‘non-Federal person’’ means a person that is not 

an entity within the Federal Government; and 


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(4) the term ‘‘rule making’’ has the meaning given that term 

under section 551(5). 

(b) INFORMATION TO BE POSTED ONLINE.— (1) REQUIREMENT.— (A) IN GENERAL.—Subject to subparagraph (B), the head 

of each Executive agency shall make publicly available in 

a searchable format in a prominent location on the Web site 

of the Executive agency— 

(i) a list of each covered settlement agreement entered 

into by the Executive agency, which shall include, for 

each covered settlement agreement— 

(I) the date on which the parties entered into the 

covered settlement agreement; 

(II) the names of the parties that settled claims 

under the covered settlement agreement; 

(III) a description of the claims each party settled under the covered settlement agreement; 

(IV) the amount each party settling a claim 

under the covered settlement agreement is obligated to pay under the settlement agreement; 

(V) the total amount the settling parties are obligated to pay under the settlement agreement; 

(VI) for each settling party— 

(aa) the amount, if any, the settling party is 

obligated to pay that is expressly specified 

under the covered settlement agreement as a 

civil or criminal penalty or fine; and 

(bb) the amount, if any, that is expressly 

specified under the covered settlement agreement as not deductible for purposes of the Internal Revenue Code of 1986; and 

(VII) a description of where amounts collected 

under the covered settlement agreement will be deposited, including, if applicable, the deposit of 

such amounts in an account available for use for 

1 or more programs of the Federal Government; 

and 

(ii) a copy of each covered settlement agreement entered into by the Executive agency. 

(B) CONFIDENTIALITY PROVISIONS.—The requirement to 

disclose information or a copy of a covered settlement agreement under subparagraph (A) shall apply to the extent that 

the information or copy (or portion thereof) is not subject to 

a confidentiality provision that prohibits disclosure of the 

information or copy (or portion thereof). 

(2) PERIOD.—The head of each Executive agency shall ensure 

that— 

(A) information regarding a covered settlement agreement 

is publicly available on the list described in paragraph 

(1)(A)(i) for a period of not less than 5 years, beginning on 

the date of the covered settlement agreement; and 

(B) a copy of a covered settlement agreement made available under paragraph (1)(A)(ii) is publicly available— 

(i) for a period of not less than 1 year, beginning on 

the date of the covered settlement agreement; or 


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(ii) for a covered settlement agreement under which 

a non-Federal person is required to pay not less than 

$50,000,000, for a period of not less than 5 years, beginning on the date of the covered settlement agreement. 

(c) PUBLIC STATEMENT.—If the head of an Executive agency determines that a confidentiality provision in a covered settlement agreement, or the sealing of a covered settlement agreement, is required 

to protect the public interest of the United States, the head of the 

Executive agency shall issue a public statement stating why such action is required to protect the public interest of the United States, 

which shall explain— 

(1) what interests confidentiality protects; and 

(2) why the interests protected by confidentiality outweigh the 

public’s interest in knowing about the conduct of the Federal 

Government and the expenditure of Federal resources. 

(d) REQUIREMENTS FOR WRITTEN PUBLIC STATEMENTS.—Any 

written public statement issued by an Executive agency that refers 

to an amount to be paid by a non-Federal person under a covered 

settlement agreement shall— 

(1) specify which portion, if any, of the amount to be paid 

under the covered settlement agreement by a non-Federal person— 

(A) is expressly specified under the covered settlement 

agreement as a civil or criminal penalty or fine to be paid 

for a violation of Federal law; or 

(B) is expressly specified under the covered settlement 

agreement as not deductible for purposes of the Internal 

Revenue Code of 1986; 

(2) if no portion of the amount to be paid under the covered 

settlement agreement by a non-Federal person is expressly specified under the covered settlement agreement as a civil or criminal penalty or fine, include a statement specifying that is the 

case; and 

(3) describe in detail— 

(A) any actions the non-Federal person shall take under 

the covered settlement agreement in lieu of payment to the 

Federal Government or a State or local government; and 

(B) any payments or compensation the non-Federal person shall make to other non-Federal persons under the covered settlement agreement. 

(e) CONFIDENTIALITY.—The requirement to disclose information 

under subsection (d) shall apply to the extent that the information 

to be disclosed (or portion thereof) is not subject to a confidentiality 

provision that prohibits disclosure of the information (or portion 

thereof). 

(f) REPORTING.— 

(1) IN GENERAL.—Not later than January 15 of each year, the 

head of an Executive agency that entered into a covered settlement agreement or that entered into a settlement agreement 

that involves regulatory action or regulatory changes during the 

previous fiscal year shall submit to each committee of Congress 

with jurisdiction over the activities of the Executive agency a report indicating— 


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(A) how many covered settlement agreements the Executive agency entered into during that fiscal year; 

(B) how many covered settlement agreements the Executive agency entered into during that fiscal year that had 

any terms or conditions that are required to be kept confidential; 

(C) how many covered settlement agreements the Executive agency entered into during that fiscal year for which 

all terms and conditions are required to be kept confidential; 

(D) the total amount of attorney fees, costs, and expenses 

paid to non-Federal persons under settlement agreements 

(including consent decrees) of the Executive agency during 

that fiscal year; and 

(E) the number of settlement agreements (including consent decrees) between the Executive agency and non-Federal 

persons that involve regulatory action or regulatory 

changes, including the promulgation of new rules, during 

that fiscal year. 

(2) AVAILABILITY OF REPORTS.—The head of an Executive 

agency that is required to submit a report under paragraph (1) 

shall make the report publicly available in a searchable format 

in a prominent location on the Web site of the Executive agency. 

* * * * * * * 

Æ 


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