君王 𓃵 🇨🇩

CAN A COMPANY USE A 10-YEAR-OLD TWEET TO TERMINATE A CONTRACT TODAY? In the wake of Ezra Olubi’s termination, one question keeps ringing in my head: Can a “significant negative reputational damage” clause be triggered by conduct that happened over a decade ago, remained publicly accessible for years, and was never hidden in the first place? If I were to make Ezra's case, I would consider the below amongst other things. 1. Reputational clauses are not designed to punish the past Every reputational-risk clause I’ve ever seen, whether in fintech, banking, SaaS, Web3, or traditional employment, is forward-looking. The language is always something like: “the employee engages in conduct…” “acts or omissions by the employee…” “makes statements that…” “does anything that causes or is likely to cause reputational damage…” The key phrase is always “does” not “did”. These clauses attach to new behaviour, not archived posts collecting dust since the Goodluck Jonathan administration. Why? Because contract law respects consensus ad idem (both parties must agree on what is being regulated). You cannot retroactively punish conduct that occurred long before the contract existed, especially when the information was public and discoverable. Unless the clause expressly says it applies retrospectively (and they never do), the courts will not stretch it that far. 2. If the conduct was public at the time of contracting, it can be strongly argued that the company is deemed to have accepted it. This is where, I believe, the case becomes legally tricky for Paystack and Stripe. Ezra’s tweets and blog posts were: - in the public domain, - accessible to anyone, - discoverable with a simple Google search, - available long before the $200M acquisition. Stripe conducted due diligence. Stripe retained Ezra. Stripe approved the leadership structure. How do you claim reputational damage in 2024 from conduct you implicitly accepted in 2020 during acquisition and for several years afterwards? This is classic approbation and reprobation. Hot and Cold. Caring and Mean. It does not work in law. You cannot accept a fact when it benefits you and reject it when it becomes inconvenient. The law does not allow that dance. Once the acquirer had knowledge (or constructive knowledge), opportunity to object and still chose to proceed, the company is deemed to have waived the right to claim that same historic behaviour now causes “significant reputational damage.” You can’t sleep on something and wake up years later with selective amnesia. 3. No new conduct or inaction = no trigger. I really want to see how Stripe would define public resurfacing as a misconduct This is the part people miss. Ezra did not wake up last week and post a new controversial statement. He did nothing. He issued no new controversial blogs. He posted no new hot take. He made no new pronouncements. Someone else dug up old tweets. So even if the resurfacing caused uproar, the causal link between “employee conduct” and “reputational impact” is broken. Reputational-damage clauses apply to the employee’s actions not the audience’s rediscovery or a heartbroken Ex's crash out. If the employee did not create new risk through new behaviour, the clause is not triggered. I strongly opine. 4. If the court allows retroactive interpretation of these clauses, no one is safe and the corporate scene becomes a joke. Let’s test this with the scenarios. Feel free to paint yours: A fight you had at age 14 can cost you your job at 54. A Facebook post from 2009 can be used to terminate a contract in 2040. A decade-old university rant can suddenly become “professional misconduct.” Even worse, this means due diligence becomes a performative exercise. If an employer fails to do it, they can later weaponise their own negligence against the employee. That is a dangerous slope in an already dangerous dog eat dog corporate world. Contracts are meant to...