DISCRIMINATION PLAINTIFF MUST PAY BACK SETTLEMENT PROCEEDS DUE TO VIOLATING CONFIDENTIALITY PROVISION

In settlement agreements, it is quite common for the parties to insert confidentiality provisions, such as the following: "The 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 plaintiff's portion of the settlement payments."

In a case involving the above confidentiality provision, four days after the agreement was signed in 2011, the defendant employer notified the plaintiff employee that he had breached the agreement based on the Facebook posting of his college-age daughter, wherein she stated, "Mama and Papa Snay [plaintiff] won the case against Gulliver. Gulliver is now officially paying for my vacation to Europe this summer . . . ."

Because of the alleged breach of the settlement agreement, the employer refused to pay the settlement amount, arguing that the statement in the daughter's Facebook constituted a breach. The plaintiff's deposition was taken and he admitted that he told his daughter about the situation, and the court found that the fact that he knew he needed to tell his daughter something did not excuse his breach. The daughter then did precisely what the confidentiality provision was designed to prevent, advertising to the Gulliver community that Snay had been successful in his age discrimination and retaliation case against the school. Thus, the plaintiff lost the case, and had to return the settlement monies. Gulliver Schools, Inc. v. Patrick Snay, 121 FEP Cases 1421 (Florida District Court of Appeals, 2014).