Snay filed an age discrimination action after his 2010-2011 contract was not renewed. A settlement was reached in November 2011 to pay him $10,000 in back pay, and an $80,000 settlement. Gulliver Schools also agreed to pay Snay’s attorneys a check for $60,000. That is when Snay’s daughter sent the following ditty to 1,200 Facebook followers, including current and former Gulliver students: “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’s lawyers were not inclined to follow the advice and declared a breach of the agreement. Snay and his wife agreed to the following provision:
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.
He received notice just four days after the signing of the settlement that he was now in breach.
Snay insisted that they had to inform their daughter because she had been “retaliated against” by Gulliver and “had quite a few psychological scars.” They felt that they had to tell her something. Snay went to court to enforce the settlement and won. However, the school appealed.
The Third District Court of Appeal reversed and found that Snay had violated confidentiality: “Snay violated the agreement by doing exactly what he had promised not to do. His daughter then 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. . . Based on the clear and unambiguous language of the parties’ agreement and Snay’s testimony confirming his breach of its terms, we reverse the order entered below granting the Snays’ motion to enforce the agreement.”
The decision is very terse and does not explore the issue of the nature of the disclosure to the daughter or the idea that such a confirmation is implicitly permissible for a child. It simply found that they told a third party who informed 1500 people.
It is a tough case. Ideally, these agreements should include family members with the caveat that they agree to hold the information in confidence. Indeed, it seems be pretty harsh to stop a parent from telling a child of an agreement. Yet, the agreement was written in such harsh terms. Moreover, regardless of the understandable initial disclosure, the family was responsible for 1500 people being told. The court insisted that ” before the ink was dry on the agreement, and notwithstanding the clear language of section 13 mandating confidentiality, Snay violated the agreement by doing exactly what he had promised not to do. His daughter then 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.” So the violation was telling his daughter and she then aggravated the violation on Facebook.
It is the first part of that holding that concerns me. There is at least some basis for viewing a confirmation to a child as a de minimus violation, though that is strongest with a minor child. (The daughter is described as their “college-age daughter”). I can understand the breach of informing 1500 people since a court could view a particular case as an effort to use surrogates to circumvent the agreement.
There is also a concern that the daughter did not reveal anything other than the fact that a settlement was reached. In fairness to the school, her mocking tone indicated that it was an ample financial settlement. For a defendant, that results in what they want to avoid — encouraging future lawsuits on the same basis. The posting was the type of “victory lap” that confidential agreements are intended to avoid.
Then there are those attorneys fees. I am not sure if this was a contingency case, but the firm presumably can proceed against the family for the full amount. If they had some contingency agreement, the family violated the terms of the settlement and though negligence led to the loss of the fee payment. If this was a straight fee arrangement, the family is now simply on the hook for the fees which would bring the loss to $140,000 (unless the firm cuts the family a discount). The only wrinkle would be if the family claims to have acted upon legal advice or their understanding from discussions with their lawyers. There is no indication of that in the record and the description by the family was that the decision was made in their car after the settlement to tell their daughter.
Snay is now the headmaster at Riviera Preparatory School in Coral Gables, Florida.
What do you think about this breach?