by Fiona Clancy, Associate Notes and Comments Editor<\/p>\n
<\/p>\n
A Florida dad learned a costly lesson about sharing confidential information with his daughter and the ramifications of a subsequent social media post in a case that has gotten a lot of media attention lately.\u00a0<\/p>\n
Patrick Snay sued his employer, Gulliver Prep School, when his 2010-2011 contract as the school\u2019s headmaster was not renewed.[1]<\/a>\u00a0 Mr. Snay filed a two count complaint under the Florida Civil Rights Act alleging age discrimination and retaliation.[2]<\/a>\u00a0 On November 3, 2011, the parties executed a settlement agreement with various payments to be made by Gulliver Prep including $10,000 in back pay to Mr. Snay, (known as \u201cCheck #1), $80,000 to Mr. Snay as a \u201c1099\u201d (known as \u201cCheck #2), and $60,000 to Mr. Snay\u2019s attorneys (known as \u201cCheck #3).[3]<\/a>\u00a0 Central to the agreement was a confidentiality clause that read in part:<\/p>\n \u00a0\u201c13. Confidentiality<\/b>\u2026The plaintiff shall not either directly or indirectly, disclose, discuss or communicate to any entity or person, except his attorneys or other professional advisors or spouse any information whatsoever regarding the existence<\/i><\/b> or terms of this Agreement\u2026A breach\u2026will result in disgorgement of the Plaintiffs portion of the settlement payments.\u201d[4]<\/a>\u00a0<\/p>\n On November 7, 2011, only four days after the agreement was signed, Gulliver Prep notified Mr. Snay that he had breached the Agreement based on his daughter Dana Snay\u2019s Facebook post which stated[5]<\/a>:<\/p>\n \u00a0\u201cMama and Papa Snay won the case against Gulliver.\u00a0 Gulliver is now officially paying for my vacation to Europe this summer.\u00a0 SUCK IT.\u201d[6]<\/a><\/p>\n The Facebook post went out to approximately 1,200 of Dana Snay\u2019s Facebook friends, which included many current or past Gulliver Prep students.[7]<\/a><\/p>\n Gulliver Prep also informed Mr. Snay that it would not be tendering Check #2, the $80,000 payment.[8]<\/a>\u00a0 Mr. Snay moved to enforce the settlement agreement and receive payment, and the trial court held that the Facebook posting did not<\/i> constitute a breach of the agreement.[9]<\/a>\u00a0 However, Florida\u2019s Third District Court of Appeals reversed the trial court\u2019s ruling on February 26, 2014, stating that Mr. Snay\u2019s $80,000 settlement with Gulliver Prep was null and void because his daughter breached the terms of the non-disclosure clause when she posted about it on Facebook.[10]<\/a>\u00a0 The Court of Appeals ruled in favor of Gulliver Prep in finding that Snay violated the agreement when he told his daughter about the settlement and acknowledged that Dana Snay did precisely what the confidentiality agreement was designed to prevent– advertising to the Gulliver Prep community that Snay had been successful in his age discrimination and retaliation case against the school.[11]<\/a>\u00a0<\/p>\n The internet has been buzzing with legal commentary regarding this case with many lawyers weighing in and discussing the lessons learned.<\/p>\n A Chicago based, self-described \u201csocial media\u201d attorney feels \u201cthis case illustrates why (1) it is important for parties to abide by the confidentiality provisions of settlement agreements and (2) people who learn confidential information should keep their social media mouths shut.\u201d[12]<\/a>\u00a0<\/p>\n One employment attorney commented that in most cases, the discussion revolves around the liability that social media can cause employers, while this case represents a turn of events with Facebook working in the employer\u2019s favor.[13]<\/a>\u00a0 That attorney believes this case serves as a reminder that social media can open \u201cPandora\u2019s box\u201d with respect to liability for employers, but it can also provide a wealth of information during litigation for both sides.[14]<\/a>\u00a0<\/p>\n Another employment attorney believes this case illustrates the need for well drafted confidentiality clauses.[15]<\/a>\u00a0 After all, employers include confidentiality clauses in their agreements precisely because they do not want a former employee openly disclosing the amount or existence of a settlement payment as that can encourage additional legal challenges and\/or cause discord among current employees.[16]<\/a>\u00a0 While Gulliver did not end up paying Mr. Snay the $80,000, the information it wanted to protect is nevertheless now public.\u00a0 The valuable lesson for employers, the attorney opines, is that a well written confidentiality clause is essential if an employer wants to prevent disclosure of the existence or amount of a settlement payment.[17]<\/a>\u00a0 The attorney suggests drafting the clauses to permit disclosure to immediate family members (which the agreement in the Snay case did not) because it is unlikely that families will not share the information with people who have been aware of and involved in the litigation process.\u00a0 The key is to permit disclosure to those immediate family members but subject those family members to the same confidentiality requirements as the employee, preventing disclosure outside the immediate family.[18]<\/a>\u00a0 During the appeals process, Mr. Snay testified that he \u201cknew the litigation was important to his daughter and that he and his wife would have to tell her something<\/i>.\u201d[19]<\/a>\u00a0 The appellate judge stated in her opinion that \u201c[t]he fact that Snay testified that he knew he needed to tell his daughter something did not excuse this breach\u201d and that there was \u201cno evidence that [Snay] made this need known to the school or to his or its attorneys so that the parties might hammer out a mutually acceptable course of action in the agreement.\u201d[20]<\/a>\u00a0 The court was not swayed by Mr. Snay\u2019s testimony that he had not told his daughter he had \u201cwon\u201d the case, and that she did not go to Europe, nor had she planned such a trip.[21]<\/a><\/p>\n A Michigan based employment attorney summed it up by stating \u201cFacebook and confidentiality agreements do not mix.\u201d[22]<\/a>\u00a0 The attorney also posits that it is \u201cunrealistic to think that a family cannot be told since the fact of litigation is undoubtedly known\u201d and suggests language in the agreement that allows for the disclosure of the settlement to immediate family members which specifically defines what family members may be told, while also specifically prohibiting any disclosures.[23]<\/a>\u00a0 Such a provision would not have authorized Dana Snay\u2019s Facebook post, and would have better protected Gulliver Prep\u2019s interests.[24]<\/a><\/p>\n While acknowledging that people may feel sympathy for the Snay family, the Michigan employment attorney feels this case provides important comfort to employers who settle cases with the express intention that the settlement remains confidential, and properly emphasizes to plaintiffs that nondisclosure means nondisclosure\u2014even when third parties or family members are involved.[25]<\/a>\u00a0 Furthermore, this case serves as an important reminder that social media is now an established part of everyday life, that prohibitions against disclosure should specifically mention social media, and that our lawyering and agreements should adapt to the ever present technologies and platforms that permeate our lives.[26]<\/a>\u00a0 Appropriately planning for these situations is something both clients and attorneys can \u201cLike.\u201d<\/p>\n [1]<\/a> Gulliver S [2]<\/a> Id.<\/i><\/p>\n<\/div>\n [3]<\/a> Id.<\/i><\/p>\n<\/div>\n [4]<\/a> Id.<\/i><\/p>\n<\/div>\n [5]<\/a> Dana Snay was a recent Gulliver Prep graduate at the time of her Facebook post regarding her father\u2019s settlement.<\/p>\n<\/div>\n [6]<\/a> Id.<\/i><\/p>\n<\/div>\n [7]<\/a> Id.<\/i><\/p>\n<\/div>\n [8]<\/a> Matthew Stucker, Girl Costs Father $80,000 with \u201cSUCK IT\u201d Facebook Post<\/i>, CNN (March 4, 2014, 9:58 AM), http:\/\/www.cnn.com\/2014\/03\/02\/us\/facebook-post-costs-father\/index.html.<\/p>\n<\/div>\n [9]<\/a> Id.<\/i><\/p>\n<\/div>\n [10]<\/a> Jennifer Reass, Did You Know\u2026An $80,000 Facebook Post Costs $80,000<\/i>, Employment Law E-Buzz (March 7, 2014), http:\/\/www.jdsupra.com\/legalnews\/did-you-knowan-80000-facebook-post-10667\/.<\/p>\n<\/div>\n [11]<\/a> Gulliver Sch., Inc. v. Snay<\/i>, 3D13-1952, 2014 WL 769030 (Fla. Dist. Ct. App. Feb. 26, 2014).<\/p>\n<\/div>\n [12]<\/a> Evan Brown, Daughter\u2019s Facebook Post Costs Dad $80,000<\/i>, internetcases (March 1, 2014), http:\/\/blog.internetcases.com\/2014\/03\/01\/social-media-confidentiality-facebook\/.<\/p>\n<\/div>\n [13]<\/a> Tawny Alvarez, Daughter\u2019s Facebook Post Sink\u2019s Father\u2019s Settlement<\/i>, Taking Care of HR Business (March 5, 2014, 3:08 PM), http:\/\/www.hrlawupdate.com\/home\/2014\/3\/5\/daughters-facebook-post-sinks-fathers-settlement.html.<\/p>\n<\/div>\n [14]<\/a> Id.<\/i><\/p>\n<\/div>\n [15]<\/a> Jamie LaPlante, Daughter\u2019s Facebook Brag Underscores the Enforceability of Confidentiality Clauses in Settlement and Severance Agreements<\/i>, Employer Law Report (March 6, 2014), http:\/\/www.employerlawreport.com\/2014\/03\/articles\/eeo\/daughters-facebook-brag-underscores-the-enforceability-of-confidentiality-clauses-in-settlement-and-severance-agreements\/.<\/p>\n<\/div>\n [16]<\/a> Id.<\/i><\/p>\n<\/div>\n [17]<\/a> Id.<\/i><\/p>\n<\/div>\n [18]<\/a> Id.<\/i><\/p>\n<\/div>\n [19]<\/a> Facebook \u201cSUCK IT\u201d Costs Dad $80,000<\/i>, Lowering the Bar (March 4, 2014), http:\/\/www.loweringthebar.net\/2014\/03\/facebook-suck-it-costs-dad-80000.html.<\/p>\n<\/div>\n [20]<\/a> Gulliver Sch., Inc. v. Snay<\/i>, 3D13-1952, 2014 WL 769030 (Fla. Dist. Ct. App. Feb. 26, 2014).<\/p>\n<\/div>\n [21]<\/a> Id.<\/i><\/p>\n<\/div>\n
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\nch., Inc. v. Snay<\/i>, 3D13-1952, 2014 WL 769030 (Fla. Dist. Ct. App. Feb. 26, 2014).<\/p>\n<\/div>\n