By now, most of you may have seen the “Suck It” post making its way around Facebook and other social media. The story is that a young girl’s father settled an age discrimination lawsuit with his employer for $80,000. However, it was agreed that the parties would keep the settlement confidential. That was a material aspect of the settlement and release. However, the plaintiff’s daughter blew the top off that with the following post:
“Mama and Papa Snay won the case against Gulliver. Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT.”
That post violated the confidentiality clause and triggered a provision nullifying the settlement. The plaintiff is now being forced to pay it back. Can the case still proceed? Sure. But now it will be a much tougher fight for the plaintiff who was fired because of his age.
Confidentiality clauses have become all the rage by defendants these days. Medical providers like to utilize them so the names of the at-fault people are kept from the public. However, in our office, we discourage the use of confidentiality clauses, except in a very narrow set of cases, for a couple reasons. Chief among those reasons is the simple fact that a confidentiality clause does little to change the behavior of the defendant. It does not inform unknowing parties of the defendant’s negligence and thus it does nothing to protect the community at large. Secondly, the plaintiff is then restricted from correcting a wrong that was personally experienced. A monetary settlement cannot fix everything. If a small business or individual is the victim of some fraud or deceit, they should be allowed to publicly restore their name. If someone is wrongfully terminated, they should be able to correct that injustice publicly.
How can we try to correct harmful behavior if there is no public repercussion? You really can’t. You don’t get to confidentially plead guilty to a crime. If a defendant is putting the community at large in danger, why shouldn’t the public be made aware? Why should you confidentially get to pay someone and not admit fault? Who does that protect?
Granted, there are times when confidential plaintiffs are needed. Take sexual abuse cases for example. The plaintiff has done nothing wrong and should not be forced to deal with the stigma of sexual abuse. But the defendant? If there is a settlement, they are admitting some sort of fault.
I am willing to admit that in some cases, a quick confidential settlement is a way to avoid the cost of litigation and allow the parties to move on quickly and discreetly. This is a rarity and not nearly as common as insurance companies would have you believe. Attorneys don’t take cases they cannot win. They don’t take frivolous lawsuits for the simple fact that they don’t get paid if they lose. Would you invest money in a frivolous adventure? I didn’t think so.
Your attorney should be discussing the settlement provisions with you throughout the case. If not, and you aren’t prepared when the time to settle comes, you could have your entire case implode. Failing to prepare is preparing to fail. If you have any questions or need help, don’t hesitate to contact our office directly or visit our website for more information.