Thursday, October 28, 2010

Referring to Former Boss as Slimebag Does Not Constitute Disparagement, At Least in Ohio

 

In Ohio Education Association v. Lopez, 2010 Ohio App. LEXIS 4272 (Ohio Ct. App.  Oct. 19, 2010), available here, the Court of Appeals of Ohio for the 10th Appellate District held in a breach of contract case that the underlying contract, a separation agreement, had not been violated even though it contained a non-disparagement clause and even though the defendant, Lopez, referred to his former boss as a “slimebag.”  The court found that this was not a material breach.  Further, the court seemed to suggest that, because Lopez’s conversation (actually a voicemail message) was directed to someone whom he “thought” was a friend, this was apparently a no harm-no foul situation.  Looking at various dictionaries, a “slimebag” is defined as a scuzzbucket,  a scuzzbag, a disagreeable person, an unpleasant person; a creep, a sleazebag, a crud, a degenerate, a deviant, a dirtbag, and a dirtball.  While the level of civil discourse has apparently degenerated so far in Ohio that such a reference is treated as a “slang expression [that] is such a part of modern casual speech as to be almost meaningless,” one can only hope that this holding will be confined to Ohio.

Oftentimes, we draft our non-disparagement clauses to read somewhat as follows:
“The Parties agree to make no disparaging, untrue, or misleading written or oral statements about or relating to the other Party, their integrity, acumen, ethics, inter-personal skills, job performance, business knowledge or business practices.”
One wonders if language like the foregoing had been utilized in the Lopez case whether the court would have arrived at a different conclusion.  Frankly, given the rationales of the court, I am far from certain that the result would be different.  After all, the court found that there was a breach, but that the breach was not material because it caused no damages.  In addition, the court found that Mr. Lopez had left the voicemail message with outside counsel for the OEA, someone whom he stated he “thought” to be a friend.  Now, I have piqued your interest undoubtedly.  Why would Mr. Lopez be calling a lawyer for OEA.  Put on your seatbelt folks – the defendant who referred to his former boss, the executive director of the OEA, as a sleazebag was none other than the former general counsel of the OEA.  So, in Ohio, lawyers can talk to lawyers whom they “think” are their friends and refer their former bosses as slimebags with impunity.

Even though the court finds a breach, because it finds the breach is not material, I guess that the breach could not be the predicate to rescind the agreement and clawback the consideration/severance monies paid to the former employee.  I haven’t thought through completely how we might revise our non-disparagement clauses, but it seems to me that one might consider language that states, in essence, that a breach is a breach, or put more succinctly, one need not establish damages or that the breach need not be material to obtain relief, e.g., rescission and disgorgement of severance pay.

 And, let’s not forget: “What’s sauce for the goose is sauce for the gander.”  Here the former employee avoided a judgment against him, but this means that, with the passage of time, eventually we will see Ohio cases (at least from this court) with the shoe on the other foot.  I can envision the executive director saying to people whom he thinks are his friends that he thought the general counsel was a slimebag.  While I have not researched it, I’ll bet you that there are significant number of lawyers out there who think that they are defamed (not to mention disparaged) if they were referred to as a slimebag.  And, given the warm fuzzy feelings that juries have about lawyers, lots of luck in proving that you were actually damaged by being called a slimebag.

Further, given that Ohio or at least this one Ohio appellate court has carved out the “I thought he was a friend” exception, maybe one’s non-disparagement clause has to state that a disparagement stated to anyone, friend or otherwise, constitutes an actionable breach.

Let’s hope that this decision is not representative of some trend in how courts will treat non-disparagement clauses.  Otherwise, we might as well tell our clients that we ought not waste our time and their money in negotiating such clauses.

Tip of the hat to Jon Hyman at Ohio Employer’s Law Blog for bringing this case to my attention.

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