Comments on: The Often-Signed, Rarely Read ‘Confidentiality Agreement’ http://businesslawstrategy.com/contract-section-analysis/the-often-signed-rarely-read-confidentiality-agreement by Jeffrey A. Fromm, Esq. Wed, 18 Aug 2010 15:36:23 +0000 hourly 1 http://wordpress.org/?v=3.0.1 By: Jeff Fromm http://businesslawstrategy.com/contract-section-analysis/the-often-signed-rarely-read-confidentiality-agreement/comment-page-1#comment-195 Jeff Fromm Tue, 13 Jul 2010 21:05:51 +0000 http://businesslawinsight.com/2007/02/08/the-often-signed-rarely-read-confidentiality-agreement/#comment-195 First, I would always want to review the specific NDA to answer a question like this. And, you refer to the agreement as a "non disclosure non circumvent", which is two different things. A simple NDA says that you can't disclose or use the other party's confidential information. A non-circumvention agreement probably says you can't DO that project, which is much stronger than an NDA (of course, if the project itself is highly confidential, that might mean the same thing in practice). On your investor group question, your liability for their actions should be governed by the precise terms of your NDA with the project consultant, but absent different provisions you could be held responsible for the acts of people to whom you disclose confidential information. The proper protection would come from having a corresponding NDA from the investor, or a specific provision in the NDA with the project consultant, or both. First, I would always want to review the specific NDA to answer a question like this. And, you refer to the agreement as a “non disclosure non circumvent”, which is two different things. A simple NDA says that you can’t disclose or use the other party’s confidential information. A non-circumvention agreement probably says you can’t DO that project, which is much stronger than an NDA (of course, if the project itself is highly confidential, that might mean the same thing in practice). On your investor group question, your liability for their actions should be governed by the precise terms of your NDA with the project consultant, but absent different provisions you could be held responsible for the acts of people to whom you disclose confidential information. The proper protection would come from having a corresponding NDA from the investor, or a specific provision in the NDA with the project consultant, or both.

]]> By: Jeff Fromm http://businesslawstrategy.com/contract-section-analysis/the-often-signed-rarely-read-confidentiality-agreement/comment-page-1#comment-194 Jeff Fromm Tue, 13 Jul 2010 20:57:41 +0000 http://businesslawinsight.com/2007/02/08/the-often-signed-rarely-read-confidentiality-agreement/#comment-194 A client list is a written or electronic list of clients, typically with more information such as contact info, business info, sales info, multiple contact points, etc. The rule I'm flagging is that, for publicly available information, the information itself is not proprietary, while the specific aggregation of that information can be. You should generally be okay using the knowledge in your head, so long as your competition is not based on your use of confidential information. Without knowing much more, it's hard to draw a clear line in the sand, but often the smoking gun is the fact that individual retained print or electronic files about the customers, pricing or business of the former employer. A client list is a written or electronic list of clients, typically with more information such as contact info, business info, sales info, multiple contact points, etc. The rule I’m flagging is that, for publicly available information, the information itself is not proprietary, while the specific aggregation of that information can be. You should generally be okay using the knowledge in your head, so long as your competition is not based on your use of confidential information. Without knowing much more, it’s hard to draw a clear line in the sand, but often the smoking gun is the fact that individual retained print or electronic files about the customers, pricing or business of the former employer.

]]> By: Steve http://businesslawstrategy.com/contract-section-analysis/the-often-signed-rarely-read-confidentiality-agreement/comment-page-1#comment-193 Steve Tue, 13 Jul 2010 20:48:24 +0000 http://businesslawinsight.com/2007/02/08/the-often-signed-rarely-read-confidentiality-agreement/#comment-193 What exactly is a client list? Is it a written list of customers? If I wanted to approach a customer based off of prior work I had done, would that be considered using the other company's "client list"? I have no knowlege that such a list even exists. What exactly is a client list? Is it a written list of customers? If I wanted to approach a customer based off of prior work I had done, would that be considered using the other company’s “client list”? I have no knowlege that such a list even exists.

]]> By: Jeff Fromm http://businesslawstrategy.com/contract-section-analysis/the-often-signed-rarely-read-confidentiality-agreement/comment-page-1#comment-192 Jeff Fromm Tue, 13 Jul 2010 20:30:51 +0000 http://businesslawinsight.com/2007/02/08/the-often-signed-rarely-read-confidentiality-agreement/#comment-192 If a confidentiality agreement does not contain a non-raid provision, then approaching a customer should not, by itself, give rise to a violation. The mere identity of a client generally is not viewed as confidential, except in special circumstances (note, however, that client lists and other client information generally is viewed as confidential). Of course, if you use your former employer's confidential information such as sales history, pricing, etc., that could well lead to a problem. The first line of protection for yourself is to make sure that you don't possess that information (other than what's in your head, which of course can't be 'erased' except by the passage of time). All company files, including company emails and electronic documents, should have been returned or destroyed/deleted upon termination of your employment. If that didn't happen, it should happen ASAP (possibly with notification to the company, but that requires a specific facts analysis). <em>Fine print: this reply is general information only and not based on an attorney-client relationship or specific facts. You should retain an attorney to review the specific facts if concerned.</em> If a confidentiality agreement does not contain a non-raid provision, then approaching a customer should not, by itself, give rise to a violation. The mere identity of a client generally is not viewed as confidential, except in special circumstances (note, however, that client lists and other client information generally is viewed as confidential). Of course, if you use your former employer’s confidential information such as sales history, pricing, etc., that could well lead to a problem. The first line of protection for yourself is to make sure that you don’t possess that information (other than what’s in your head, which of course can’t be ‘erased’ except by the passage of time). All company files, including company emails and electronic documents, should have been returned or destroyed/deleted upon termination of your employment. If that didn’t happen, it should happen ASAP (possibly with notification to the company, but that requires a specific facts analysis).

Fine print: this reply is general information only and not based on an attorney-client relationship or specific facts. You should retain an attorney to review the specific facts if concerned.

]]> By: Jeff Fromm http://businesslawstrategy.com/contract-section-analysis/the-often-signed-rarely-read-confidentiality-agreement/comment-page-1#comment-191 Jeff Fromm Tue, 13 Jul 2010 20:15:48 +0000 http://businesslawinsight.com/2007/02/08/the-often-signed-rarely-read-confidentiality-agreement/#comment-191 Steve submitted the following comment: I read your blog about Confidentiality Agreements. I signed one about a year ago with a former employer. There were no time limits involved. I have since then, left the company and started a competing business. By approaching certain clients that I have personally dealt with while employed there, would I be breaking the agreement? Steve submitted the following comment:

I read your blog about Confidentiality Agreements.

I signed one about a year ago with a former employer. There were no time limits involved. I have since then, left the company and started a competing business. By approaching certain clients that I have personally dealt with while employed there, would I be breaking the agreement?

]]> By: Rajiv Kapoor http://businesslawstrategy.com/contract-section-analysis/the-often-signed-rarely-read-confidentiality-agreement/comment-page-1#comment-68 Rajiv Kapoor Mon, 13 Jul 2009 18:44:24 +0000 http://businesslawinsight.com/2007/02/08/the-often-signed-rarely-read-confidentiality-agreement/#comment-68 Just want to let you know that I found this information useful. Just want to let you know that I found this information useful.

]]> By: Eric http://businesslawstrategy.com/contract-section-analysis/the-often-signed-rarely-read-confidentiality-agreement/comment-page-1#comment-67 Eric Thu, 14 May 2009 14:22:37 +0000 http://businesslawinsight.com/2007/02/08/the-often-signed-rarely-read-confidentiality-agreement/#comment-67 Question: I am a consultant for a land developer. I have other consultants sharing development projects with me for joint venture opportunities. They have projects to send to me by email. Then I share them with the investor group that wants to joint venture. These project consultants send to me a non disclosure non circumvent to sign. I sign it and return. It is a basic out of the book NDA. I then submit this info to the investor group with the consultants permission. The investor group however has no NDA with this consultant. Question is am I liable if the investment group shares this confidential information with others? Other question is how strong is an NDA? Is it really enforceable? Question: I am a consultant for a land developer. I have other consultants sharing development projects with me for joint venture opportunities. They have projects to send to me by email. Then I share them with the investor group that wants to joint venture. These project consultants send to me a non disclosure non circumvent to sign. I sign it and return. It is a basic out of the book NDA. I then submit this info to the investor group with the consultants permission. The investor group however has no NDA with this consultant. Question is am I liable if the investment group shares this confidential information with others? Other question is how strong is an NDA? Is it really enforceable?

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