.......... .......... .......... .......... .......... .......... .......... .......... .......... .......... .......... .......... .......... .......... .......... .......... .......... ..........“Better slip with foot than tongue.” – Benjamin Franklin (1706-1790)
It’s been some time since we visited how participating in social media such as Facebook and LinkedIn can have significant legal consequences, as well as personal impact.
Recently, a 17-year-old in North Carolina high school student was charged with felony “cyberbullying” when he posted a nude photo of a 15-year-old friend on Instagram. After charges were filed, police said the young man had been honest about his actions and had accepted responsibility. It’s too bad he didn’t think first and “Share” second. A story from Miami further illustrates the Internet’s potential for delivering both instant gratification and long-term serious consequences.
Mr. Patrick Snay, age 69, lost his job as headmaster of the tony Gulliver Preparatory School in Miami when his contract expired in 2010. He brought a lawsuit claiming Gulliver’s decision not to renew his contract was rooted in illegal age discrimination. After some time, Mr. Snay and Gulliver Prep reached a settlement agreement under which Gulliver Prep would pay him a total of $90,000 in back pay and damages plus his attorney’s fees of approximately $60,000.
“Better slip with foot than tongue.”
– Benjamin Franklin (1706-1790)
One condition of the settlement agreement was that Snay would keep the details of the settlement confidential. Confidentiality agreements have become a common component of settlements in recent years. Commonly, they call for the recipient to keep the details of the settlement private. Disclosing general information such as “the case has been resolved” or words to that effect generally is permissible. The recipient also is commonly permitted to divulge the details to accountants, lawyers, or estate planners but not to other third parties; these financial professionals usually operate under their own professional confidentiality duties, thereby protecting the overall confidentiality of the agreement. These privacy clauses often specifically state that confidentiality is an integral part of the settlement agreement so that a breach of the clause may become a significant breach of the entire settlement agreement.
Almost immediately after the settlement between Snay and his former employer, his teenage daughter took to her Facebook page and announced to her some 1,200 followers:
“Mama and Papa Snay won the case against Gulliver. Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT.” It didn’t take long for Gulliver Prep officials to hear about the daughter’s post. They were not happy.
Gulliver’s lawyers claimed Snay had violated the confidentiality terms of the settlement by divulging them to his daughter. It is a mainstay of contract law that, where one party commits a significant breach of an agreement, the other party may be excused from performing their part of the bargain. Accordingly, Gulliver Prep refused to pay Snay the remaining $80,000 called for in the settlement agreement. Snay’s lawyers filed a petition to compel the payment. At the hearing, Snay admitted he had told his daughter about the settlement because it involved closure of family issues which arose after he lost his job, including claims the school had retaliated against his daughter who remained a student after his employment ended. Mr. Snay testified: “So we knew what the restrictions were, yet we needed to tell her something.” The lower court ordered Gulliver to pay up, but he appealed. The Florida Court of Appeals overturned that decision, stating: 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 (case) against the school.” Gulliver was relieved of its responsibility to pay the additional $80,000. There is no word on his daughter’s medical condition.
Some argue confidentiality clauses tend to cover up illegal or reprehensible conduct. Others maintain they are an aid to resolution of individual cases while avoiding the appearance that the defendant believes they were wrong or will be a “pushover” in other cases. Clearly, though, once agreed to, confidentiality clauses are enforceable conditions of a settlement agreement, as Mr. and Mrs. Snay have discovered. Should the Florida courts have recognized the family issues that affected the Snays in determining whether he committed a significant breach? Should their lawyers have negotiated an exception to accommodate the daughter’s closure issues? Should Mr. Snay have made it clear that private family issues were just that, private? The Florida Court of Appeals says the contract was “clear and unambiguous.” But, of course, you can Judge for Yourself.
n • •
The next “Law La Palooza” will be held on Thursday at the Herman Sanchez Community Center 1830 William SE from 3 to 6 p.m. “Law La Palooza” events are a cooperative venture between the 2nd Judicial District Court, community legal service providers, the State Bar of New Mexico, UNM Law School, and private-practice attorney volunteers. Free legal consultations are provided on topics ranging from child support to debtor’s rights and from bankruptcy to personal injury. Consultations are free on a first come-first served basis. Spanish-speaking attorneys, and interpreters in other languages, including Sign, are available. Bring your documents with you.
Alan M. Malott is a judge of the 2nd Judicial District Court. Before joining the court, he practiced law throughout New Mexico for 30 years and was a nationally certified civil trial specialist. If you have questions, send them to Judge Malott, P.O. Box 8305, Albuquerque, NM 87198 or email to: firstname.lastname@example.org. Opinions expressed here are solely those of Judge Malott individually and not those of the court.