UPDATE: Gannett publishes broadcast contracts in KTHV Title VII litigation and the power of the “merger” clause
Gannett and KTHV filed their Motion to Dismiss late last week in the litigation recently commenced by an aggrieved former sports reporter. Among other arguments, the station group argues that any oral promises made to the Plaintiff are of no legal significance because of the written contracts that he signed and the “merger” clause (also called “integration” clause) contained therein.
In making this argument, the station group attached an affidavit, including all of the Plaintiff’s employment agreements. They are linked here.
1. By way of observation, I wish to point out that Gannett filed these contracts without first moving the Court to seal the record. The effect of this is to introduce into the public record agreements which might contain sensitive information and which might ordinarily be confidential. I suspect that at least one effect of doing this may be that Gannett has waived any later claim of confidentiality in these documents.
2. I am posting this particular update not to express any opinion about the Motion to Dismiss, but to point to the power of the merger clause.
In this case, the provision is paragraph 19 of the Agreement and reads as follows:
Entire Agreement. This Agreement contains the entire agreement of Talent and Station and cancels and supersedes all prior agreements and understandings relating to the employment of Talent by Station. This Agreement may be changed only in a writing signed by Station and Talent. The defined terms used in this Agreement have the meanings described herein and in the Letter Agreement. The parties have executed this Agreement as of the day and year show on the attached Letter Agreement between Station and Talent.
I placed in bold the two sentences you must consider. In its simplest sense, this means that any oral promises made to Talent by Station are superseded by the written agreement. It is the rare contract these days that does not include such a provision. While there are exceptions to every rule (fraud, detrimental reliance, etc.), this case and this Motion show the importance of trying to memorialize those contract terms which are important to you in writing. Do not take for granted that an employer’s oral promise of promotion, shift change, transfer, or other opportunity is enforceable in the face of one of these provisions.
In this case, the Plaintiff argues that he was promised certain promotions and that he relied on these promises. The station’s Motion to Dismiss says, among other things, hey, it doesn’t matter what was promised orally, because you signed a written contract AGREEING that oral promises are not enforceable.
This is a reminder that every paragraph in an agreement has some effect. Again, I am not opining on the merits of this Motion or suggesting that it is a death blow. There are certainly exceptions to the binding power of this provision. For example, an allegation that an employer engaged in fraud when he made certain oral promises is an exception in many jurisdictions.
Note: I am not addressing the other legal arguments in the Motion to Dismiss here, which focus primarily on whether the Plaintiff meets certain pleading standards.