Daughter’s Celebratory Facebook Post Really “Sucked”–Gulliver Schools v. Snay

Patrick Snay was headmaster at Gulliver Preparatory School, a private school in the Miami area. The school didn’t renew his contract, so he sued for age discrimination and retaliation. The parties settled confidentially for $150k, broken down as $10k of back wages, $60k of attorneys’ fees, and an $80k settlement fee. The confidentiality provision says:

[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.

Unfortunately, it appears that the parties didn’t mutually agree on the text of a public statement. Instead, Snay apparently made up what he would say to his teenage daughter, Dana, about the result of this litigation. He explained:

What happened is that after settlement my wife and I went in the parking lot, and we had to make some decisions on what we were going to tell my daughter. Because it’s very important to understand that she was an intricate part of what was happening. She was retaliated against at Gulliver. So she knew we were going to some sort of mediation. She was very concerned about it. Because of what happened at Gulliver, she had quite a few psychological scars which forced me to put her into therapy.

So there was a period of time that there was an unresolved enclosure for my wife and me. It was very important with her. We understood the confidentiality. So we knew what the restrictions were, yet we needed to tell her something.

So Snay says he told Dana “that it was settled and we were happy with the results.”

Overjoyed with the news, Dana promptly went onto her Facebook account to share it with her 1,200 friends, which included many members of the Gulliver community:

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

(Sadly, the court later says Dana never actually had a European vacation planned, but I do hope she gets to visit the Old World some day).

The court finds an easy breach of the settlement agreement and says Snay must forego the $80k settlement payment. Surprisingly, Dana’s Facebook post wasn’t the breach. Go back through the confidentiality language again. As you can see, reading the contract literally, Snay can disclose the existence of the settlement agreement only to his wife and his attorneys/advisors, but not to his daughter. As a result, Snay simply telling his daughter “that it was settled” was the breach; the Facebook post just provides evidence of the breach. Of course, Gulliver might not have known of the father-daughter conversation/violation without the Facebook post, but surely Gulliver couldn’t ignore the breach after they were told to SUCK IT.

Thus, this case seemingly sets up a bad trap for dad. By its terms, the confidentiality agreement doesn’t allow him to tell his daughter that the case settled. So what exactly was dad supposed to say to her about a litigation that surely consumed a lot of the family’s time, emotion and money? Was he supposed to come home and say something like “the case is resolved but I can’t tell you how”?

Frustratingly, to an outsider, it seems quite easy to avoid this case’s result. Let’s run through some options:

* confidentiality clauses in settlement agreements are often required to get the deal done, but that doesn’t mean they are a good idea. In the digital age, information asymmetries are never at equilibrium. So don’t agree to any confidentiality obligations unless you really have to.
* in the confidentiality provision, replace “spouse” with “family members.” It’s ridiculous to expect a dad not to tell his daughter that he settled a case she was personally involved with.
* agree to the text of a public statement about the case resolution. That way, dad isn’t making up shit in the parking lot. I think the lawyer who advised Snay has to bear some responsibility for this omission; the lawyer could easily foresee the disclosure squeeze facing Snay and should have provided an officially blessed disclosure option.
* dad might have told the daughter that everything about the case was confidential and she shouldn’t discuss it. (I don’t know if the dad did that, but it wasn’t mentioned in the case).
* never, ever tell anything to a teenager that you aren’t prepared to have broadcasted over social media. We are officially living with the oversharing generation.

I know it would be childish for them to do so, but I have to imagine that Gulliver’s lawyers at least thought to themselves after this ruling “WHO’S SUCKING IT NOW?”

Case citation: Gulliver Schools, Inc. v. Snay, 2014 WL 769030 (Fla. Dist. Ct. App. February 26, 2014)