“Confidential” Really Means Confidential


By: Wayne Melnick

One issue that comes up more and more with mediated and other pre-trial settlements is confidentiality.  Usually, when a confidentiality provision is included in a settlement agreement, it specifies who can, and sometimes who cannot, be told about the resolution, what the parties to the agreement can say about the case/claim if asked, and the penalties for violating the provision.  If the parties agree to the confidentiality of the resolution, then there is usually a good reason that at least one of them does not want word of the terms of the agreement getting out into the general public.
Apparently, Patrick Snay, the former Head of School for a private preparatory school in Florida, Gulliver Preparatory School, did not quite understand that “confidential” actually means confidential.  Snay brought an age discrimination case against his former school claiming that his employment contract was not renewed due to his age.  A pre-trial resolution was reached which called for Snay to be paid $90,000.00 and his attorneys to be paid an additional $60,000.00.  The settlement agreement included a confidentiality provision providing that Snay and his wife could not discuss the agreement with anyone except their attorneys and professional advisors.
However, after the agreement was signed, but before the money was paid, the headmaster’s daughter apparently posted the following on her Facebook wall: “Mama and Papa Snay won the case against Gulliver. Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT.”  At the time of her posting, Snay’s daughter had over 1,200 friends that could see the post – many of whom were current or former Gulliver students as she had also attended the school.  Needless to say, the school quickly got word of the post and alerted their attorneys who in turn informed Snay and his attorneys that he would not be receiving any of the settlement funds.
When questioned, Snay admitted to telling his daughter about the settlement.  Last week, Florida’s Third District Court of Appeal reversed the trial court and determined that, “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. ”  As a result, Snay will be getting none of the settlement funds.
In other words, Florida’s Third Circuit held that, at least when used in settlement agreements, “confidential” really means confidential.