Good morning!
Autumn is well and truly here (I kind of knew we were done with summer when the heirloom
tomatoes and the best peaches I have ever had at
Volante Farms in Needham were replaced by a slew of New England apples). And, since I love both,
I am willing to embrace the crisp air of Fall and the inevitable slide into winter.
After all, that’s why we live in New England, right? For the natural beauty that bookends the change of seasons, not to mention the lack of forest fires, hurricanes of incredible force, and earthquakes! Two feet of snow may be an inconvenience, but it is rarely life-threatening. Besides, the Patriots are back, with a vengeance…
Tom Brady’s throwing arm is like tempered steel and the picture of
Dorian Gray that he has hidden in his closet means he is ready to go the distance. Maybe a 7th banner?!
So, good-bye to those lazy, hazy days of summer and hello to busy calendars and cluttered desks. Break’s over!
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Marijo McCarthy, Esq.
Pr
esident, Widett and McCarthy, P.C.
Concentrating in contracts and small business purchase and sales
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Before You Sign That NDA… A Quick Tip That Might Save You Money
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I have written before about the ins and outs of
non-disclosure agreements
(“NDAs”). These days, it seems they have become an almost inevitable first step, prior to parties talking with each other about a possible business relationship.
So, it is worth revisiting them with a view towards honing in on something which might save you money spent on, ahem, lawyers.
One of the standard “carve-outs” in NDAs involves this possible, future scenario:
- You have entered into an NDA, and then a services contract with a client.
- At some time during your contract, that client finds itself the target of litigation.
- You then find yourself in receipt of a subpoena from the lawyers suing your client, asking for documents in your possession which constitute “confidential information” of your client.
- Your NDA (or your service contract) restricts you from simply responding to the subpoena and releasing your client’s confidential information, but pretty much lays out a scenario which requires you to call your lawyer and begin to spend money interacting with lawyers on the other side (and possibly even the Courts) in order to protect yourself under the NDA. Hence, the money drain!
How could you have minimized the financial burden on your resources during this scenario?
Simple. Make sure that the standard carve-out which allows you to respond to that subpoena is accompanied by
a requirement that the client bear the financial responsibility should this scenario occur.
In other words, if this possibility becomes a reality,
your client will pay the bill for court costs and attorney fees incurred by you in cooperating with your client to protect its confidential information. After all, it is important information which belongs to the client, so the client should be willing to pay to protect it.
Here is a sample among the many different possibilities of what may be asked of you in the NDA and how you might reasonably respond (in
red):
Required Disclosures.
If Discloser or Recipient or any of their respective Representatives is required by law to disclose any of the other party’s Confidential Information, the party required to make such disclosure will promptly notify the other party of such requirement prior to making the disclosure. Discloser and Recipient will then confer and use reasonable, good faith efforts to agree on a form and terms of disclosure reasonably acceptable to both Discloser and Recipient in light of the circumstances under which the disclosure is required to be made, provided that if following such notice and conferring Discloser and Recipient are unable to agree on a mutually acceptable form and terms of disclosure, then the party making the disclosure shall have no liability to the other party to the extent such disclosure is required by law provided such party makes reasonable efforts to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the other party’s Confidential Information by the tribunal requiring disclosure.
All of such efforts by Recipient to cooperate with and protect the Discloser’s Confidential Information shall be at the sole expense of the Discloser, which may include court costs and counsel fees.
There are as many variations of the litigation carve-out as there are parties asking for NDAs, so this is intended to give you a general idea of the restriction and how it might be modified.
The moral of the story? Don’t simply sign what is sent to you without a careful review and, if necessary, a reasonable revision.
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Sometimes, I come across a book that, while not superbly written, is nevertheless a good read. For me, a story that combines politics, government and journalism, with an underlying theme of global intelligence-gathering and issues of morality, is a sure thing… and Tom Rosenstiel’s “The Good Lie” fits the bill.
Even a tiny summary of the theme will disclose too much of what will surprise and dismay the reader.
That said, I can share with you some of the many vital questions the book raises:
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Who do we trust in politics? How about government officials? Do we know men and women whom we would trust with a secret that, if disclosed, would destroy an effort to protect innocent civilians in third world countries and the United States? Suppose a reporter discovered that very secret? Would he or she disclose it, notwithstanding the consequences for our country? Where does an ambitious politician or a truth-seeking investigative reporter draw the line? Is there a line, in fact, which should never be crossed when it comes to protecting our country?
As I said, many vital questions! And while I don’t think the dark side of government and politics will surprise the reader, this political thriller, which maps the human costs of potential exposure of an undercover operation, will keep you thinking from start to finish.
As with Rosenstiel’s first novel, “
Shining City,” this, too, is an edge-of-your-seat, Washington thriller which adds up to a good read.
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Widett and McCarthy concentrates in advising small business owners in the areas of contracts and small business purchase and sales.
Whether reviewing a contract for services with a customer, negotiating a lease with a landlord, finalizing financing documents with a lender, we make sure our clients' best interests are protected.
For those clients who are either acquiring a business or are ready to pass the torch and reap the benefits of their hard work and investment, advising on those all-important Offers and Purchase and Sales Agreements when the time is right is paramount. We work closely with them to ensure the best possible outcome.
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Widett and McCarthy, P.C.
1075 Washington Street
West Newton, MA 02465
Telephone: 617.964.5559
Facsimile: 617.964.5529
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The information you obtain at this site is not,
nor is it intended to be, legal advice.
You should consult an attorney for individual advice
regarding your own situation.
Copyright © 2019 Widett and McCarthy, P.C.
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