Hard as it is to believe, we have just completed a full year three of Widett and McCarthy remote working… and we love it!

Although we continue to keep an office in Newton, we are only there occasionally (I think our office cleaner is there more often than we are!). My office commute is “downstairs and turn right” into my now well-equipped home office… no traffic congestion, no weather concerns, and the best water views around. If I am so inclined, I can pop into my office at 5:00 am, put in a few very productive hours, and still have the possibility of doing something fun with a chunk of my day. What’s not to like? 

And those fun things have included, of course, lunch or dinner with friends on the Marina Bay boardwalk (slurping down as many oysters as I can). Fortunately, September and October still provide some really nice outdoor eating time, which is where you will find me when I am not toiling away on my clients’ business in my home office. Come visit and share the joy!

Cordially, 

I have written before [ here , here , and here ] about the almost hidden restrictions in nondisclosure agreements (“NDAs”); they continue to precede almost every business discussion, ranging from the parties’ intent to enter into a services contract to the possibility of selling a business.

They are ubiquitous and need careful review, consideration, and negotiation before signing. So, it is worth revisiting them, with a view towards continuing to hone in on small word changes which might save you some angst if you ever find yourself involved in litigation.

One of the standard provisions most likely to be overlooked addresses the possibility of the outcome for a breach of the NDA. Many lawyers (including yours truly) are even-tempered in their language here and the NDA may already reflect that.

However, many more lawyers are not, forcing the other party to red-line the objectionable provisions as part of review or assuming that many clients fail to have counsel review these NDAs and may sign them as they stand (Ugh!).

Below is one of the most egregious provisions in an NDA and one which can so easily be tailored to produce mutual equity:

Availability of Equitable Relief.  Each party understands and agrees that its breach or threatened breach of this Agreement will ( recommendation: substitute “may” for “will”; how could either party absolutely know what will or won’t cause the other harm until it actually occurs? ) cause irreparable injury to the other party and that money damages will ( same recommendation for the same reason ) not provide an adequate remedy for such breach or threatened breach, and both parties hereby agree that, in the event of such a breach or threatened breach, the non-breaching party will also be entitled, without the requirement of posting a bond or other security, to seek equitable relief, ( no party can assure the other party that a court will grant equitable relief, only that a party may seek it from a court ) including injunctive relief and specific performance. The parties’ rights under this Agreement are cumulative, and a party’s exercise of one right shall not waive the party’s right to assert any other legal remedy. 

As with several other gotchas in NDAs, this one can be addressed easily and quickly, with the goal being mutual equity. After all, isn’t that what a Mutual NDA should be about (don’t even consider signing a one-sided NDA!)?

In my experience, you will get no unreasonable pushback from the other party; their counsel knows the reasonableness of this revision and is usually ready to accept it. One more way to strive for fair documentation from the very beginning of a business transaction!

Given so much rainy, hot, and humid summer weather, neither the pool nor the beach got much of a work-out. However, it did produce some wonderful reading days without any guilty feelings while curled up with some good books.

I have probably recommended this author before but, for those of you who have not yet dipped into author Daniel Silva, I highly recommend that you take the plunge. I also suggest that you go back to the beginning (just check it out on Amazon and you will find his novels listed chronologically). Silva’s recurrent character is Gabriel Allon and, in his latest adventure… The Collector … the retired head of Mossad, home of Israeli intelligence, as well as a gifted painting restorer, somehow manages to return to his roots in the world of spies. And this time the setting is Ukraine and he is, once again, up against the president of Russia. It is superb.

For those of you who enjoy historical fiction, one of my favorite authors for stand-alone historical novels is Marie Benedict. She continues to please with The First Ladies , a story best described as an extraordinary relationship between Eleanor Roosevelt and African-American civil rights activist, Mary McLeod Bethune.

Meeting each other well before FDR becomes President, Bethune is strong, resolute, and confident, where Roosevelt is still the shy, unconfident woman who grew up in the shadow of a beautiful and socially-confident mother and has not yet been able to grow beyond her upbringing. Bonding almost immediately with Bethune sparks a passion in Roosevelt which will follow her into the White House as she and her colleague go on to produce a quiet revolution sparked and nurtured between women who strive for a better world, regardless of color. When First Lady Eleanor Roosevelt gets into the cockpit of a plane with an African-American pilot for a tour of the Tuskegee Airmen training facility, you will wish you had actually been there that day! It is a wonderful story… and I loved it. I hope you do, as well.