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Valparaiso Univ. Law School

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Monday, March 17, 2014

“Strictly Confidential” Means Don’t Boast about Settlement on Facebook

An employee sues his employer for age discrimination and retaliation.  The parties reach an $80,000 settlement agreement pursuant to which the existence and terms of the settlement are to be kept “strictly confidential.”  The employee is only allowed to tell his wife, attorneys and other professional advisers about the settlement.  A breach of the agreement will result in the “disgorgement of the Plaintiff’s portion of the settlement payments,” although the attorney would, in case of a breach, be allowed to keep the separately agreed-upon fee for his services.  The employee tells his teenage daughter about the settlement and being “happy about it.”  Four days later, she boasts to her 1,200 Facebook friends:

“Mama and Papa Snay won the case against Gulliver.  Gulliver is now officially paying for my vacation to Europe this summer.  SUCK IT.”

The employer does not tender the otherwise agreed-upon settlement amount, citing to a breach of the confidentiality clause of the contract.  The employee brings suits, wins at trial, but loses on appeal.  The employee’s argument?  He felt that it was necessary to tell his daughter “something” about the agreement because, some sources state, she had allegedly been the subject of at least some of the retaliation against her father.

The appellate court emphasized the fact that the agreement had called for the employee not to disclose “any information” about the settlement to anyone either directly or indirectly.  Settlement agreements are interpreted like any other contract.  Thus, the unambiguous contractual language “is to be given a realistic interpretation based on the plain, everyday meaning conveyed by the words,” according to the court.  The employee did precisely what the confidentiality agreement was designed to prevent, namely advertise to the employer’s community that the case against them had been successful.

What could the employee have done here if he truly felt a need to tell his daughter about the deal?  Pragmatically, he could have made it abundantly clear to his daughter that she was not to tell anyone, obviously including her thousands of Facebook “friends,” about it.  Hopefully she would have abided by that rule...  The court pointed out that the employee could also have told his attorney and/or the employer about the need to inform his daughter in an attempt to reach an agreement on this point as well.  Having failed to do so, “strictly confidential” means just that.  As we know, consequences of breaches of contract can be ever so regrettable, but that does not change any legal outcomes. 

The case is Gulliver Sch., Inc. v. Snay, 2014 Fla. App. LEXIS 2595.

http://lawprofessors.typepad.com/contractsprof_blog/2014/03/strictly-confidential-means-dont-boast-about-settlement-on-facebook.html

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