Recently, a Florida appellate court held that a former headmaster was not entitled to an $80,000 payment pursuant to a settlement agreement with his former employer, all thanks to his chats with his daughter about the settlement, and her subsequent Facebook post bragging about the settlement.
Patrick Snay sued Gulliver Schools, Inc. for age discrimination and retaliation. Gulliver agreed to pay Snay, in part, $80,000 to settle all claims. The parties’ agreement contained a non-disclosure provision requiring the existence and terms of the settlement be kept confidential, and upon breach by Snay or his wife, the disgorgement of the $80,000 payment.
Four days after the parties executed the settlement agreement, Gulliver notified Snay that he had breached the agreement due to Snay’s daughter’s Facebook post: “Mama and Papa Snay won the case against Gulliver. Gulliver is now officially paying for my vacation to Europe this summer. [expletive].” The post from Snay’s college-aged daughter, a former Gulliver student, reached her nearly 1,200 Facebook friends, including current or former Gulliver students.
Gulliver informed Snay of the breach and refused to pay the $80,000. Snay moved to enforce the agreement, claiming neither his communications with his daughter nor her comments on Facebook was a breach. Snay later testified he had advised his daughter, who had been retaliated against at Gulliver due to the lawsuit, that the case was settled and he was “happy with the result.” The trial court found no breach resulted from Snay’s comments to his daughter or her Facebook posts.
The appellate court reversed, relying on the plain language of the settlement agreement that prohibited Snay and his wife from “directly or indirectly” disclosing “any information” about “the existence or terms of this Agreement.” The appellate court concluded that Snay’s comments to his daughter were a clear breach of that provision. The appellate court further stated that by posting a comment on Facebook that was viewed by current and former Gulliver students, Snay’s daughter essentially communicated that his lawsuit was warranted, in other words, that his daughter “did precisely what the confidentiality agreement was designed to prevent, advertising to the Gulliver community that Snay had been successful in his age discrimination and retaliation case against the school.”
Notably, the appellate court’s opinion is silent as to whether Snays’ daughter made the comment on the public or private portion of her Facebook account, or how Gulliver was made aware of her post. (One may assume that one of her 1,200 Facebook “friends” or their parents advised Gulliver.) Although part of the breach here occurred when Snay communicated with his daughter, this case also demonstrates the perils of seemingly passing comments on Facebook, regardless of where those posts are made. Remember to advise your clients of the real-life meaning and consequences of a confidentiality provision… or your adversary may be using this case against you!