In yet another very public disclosure of the existence of a settlement agreement, the Third Circuit Court of Appeals of Florida last week overturned a Circuit Court decision on a motion to enforce the settlement agreement (Gulliver Schools v. Patrick Snay).

The facts of the case are simple.  Mr. Snay was the headmaster of Gulliver Schools.  He was dismissed at age 69, after which he brought a complaint alleging age discrimination.  He reached a settlement with his former employer for the payment of $10,000 in back wages, $80,000 in general damages and $60,000 in legal costs. 

The terms of settlement included a confidentiality clause which read:

13. Confidentiality. . . [T]he 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 or terms of this Agreement. . . A breach . . . will result in disgorgement of the Plaintiffs portion of the settlement Payments.

Four days after the agreement was signed, Gulliver notified Snay that he had breached the agreement based on the Facebook posting of Snay's college-age daughter.  The daughter's post went out to her approximately 1200 Facebook friends, many of which were current or former students of Gulliver.  Her post was this:

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

The School paid the legal fees portion of the settlement but refused to pay the remainder, claiming that the confidentiality terms were breached.  The Court of Appeal noted that what happened was precisely the type of circumstances that the confidentiality clause was designed to prevent.  Snay breached the agreement by telling his daughter about the settlement, and indirectly breached the agreement when she made her post on Facebook.

It is another very useful decision that demonstrates a growing trend towards enforcement of confidentiality provisions and the dangers associated with social media for parties to a settlement.  In earlier blogs by  Andrew Cogswell and  Michael MacLellan we reviewed two recent Ontario decisions involving similar facts and results.  This trend of cases reinforces the importance of a well-crafted settlement document and diligence in the enforcement of confidentiality provisions.

The lawyers at CCP are able to assist employers with drafting settlement agreements and providing guidance when faced with a breach of agreed terms.

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