Amid Continuing Sexual Misconduct Scandals, Legislators Target NDAs and Confidentiality Agreements

As allegations of sexual misconduct continue to surface almost daily against high-profile individuals, some legislators have responded by proposing legislation curtailing the use of non-disclosure (NDA) and confidentiality agreements. Critics have opined that such agreements (particularly as used by Harvey Weinstein) have enabled victimizers to conceal and continue long-running patterns of sexual misconduct, in that they prevented discussion of the accusations among both the victims and others, such as co-workers, who knew of the victimization.

In October, California State Senator Connie Leyva announced that she would introduce “legislation to ban secret settlements (confidentiality provisions in settlement agreements) in sexual assault, sexual harassment and sex discrimination cases” when the California Senate reconvenes in early January 2018. On November 15, Pennsylvania State Senator Judy Schwank stated in a press conference that she would introduce a bill that prospectively bans contractual provisions “prohibit[ing] a person from revealing the identity of a person who committed sexual misconduct” and voids any such provisions entered into under duress or incapacity, or by a minor, prior to the law’s enactment.

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Part IX of “The Restricting Covenant” Series: Tolling and Technicians

This year’s Halloween festivities, my recent binge watching of “Stranger Things 2,” and Harry Potter’s invisibility cloak, inspired the topic of this ninth article in “The Restricting Covenant” Series, which discusses tolling provisions in non-compete agreements and restrictive covenant cases. Specifically, can a tolling provision provide judicial relief to an employer if its former employee hid under the cover of darkness and concealed violations during the restricted period? What relief do employers have in this situation?

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Confidentiality and Nondisclosure Agreements (CA)

Mark Terman and Sujata Wiese authored a practice note for Practical Law titled “Confidentiality and Nondisclosure Agreements (CA).” In their note, Mark and Sujata discuss how companies can protect their information, including the use of confidentiality agreements, under California law.

Mark and Sujata address considerations involved in safeguarding a company’s confidential information, and substantive provisions and issues common to many commercial confidentiality agreements. They state that “having effective confidentiality agreements in place with other parties is necessary but not sufficient to protect an organization’s confidential information and data. Comprehensive protection requires the participation and coordination of management and staff at all levels across all functions, from finance and administration to marketing and sales. It often falls to the legal department, working closely with the information technology (IT) function and with the support of senior executives, to lead the company-wide information management and protection program.”

Topics addressed in the note include: company-wide information and data security policies; compliance with contractual obligations governing others’ confidential information; trade secrets; privacy and data security laws and regulations; and form, structure and key provisions of confidentiality agreements.

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Part VIII of “The Restricting Covenant” Series: (Non) Solicitation, Social Media Networking, and Sales Representatives

By Lawrence J. Del Rossi

This eighth article in “The Restricting Covenant” Series discusses some recent trends in the evolving area of restrictive covenant law, non-solicitation agreements, and Internet social media networking, including sales representatives’ use of LinkedIn to contact and communicate with customers and other business relationships.

Rolodex Redux

A decade or so ago, social media networking platforms on the Internet were new to me. I had just heard of this thing called “LinkedIn” as a new way to connect with my former classmates and other acquaintances. It was touted as an easy, cost-free way to communicate with them about my professional accomplishments and career developments. In many ways, your LinkedIn profile is your virtual resume to the world. Therefore, like millions of others, I created a LinkedIn profile, sent and received connection requests, and made posts.

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Part VII of “The Restricting Covenant” Series: Blue Pencils and Brokers

By Lawrence J. Del Rossi – with special thanks to Summer Associate Joshua Lattimore for his assistance.

The start of the new school year, and kids around the country sharpening their pencils to learn in earnest (or at least I hope they are) sparked the topic for this seventh article in this Series. It discusses restrictive covenants and the “blue-pencil” doctrine – a tool many courts use to modify overly broad restraints on post-employment business activities.

Why “Blue” Pencils?

Being the legal geek that I am, I was curious about the origins of the blue-pencil doctrine, including how it got its name, how it applies in restrictive covenant cases, and which states have adopted it given that restrictive covenant law varies state by state.

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Part VI of “The Restricting Covenant” Series: Veterinarians and Vehicles

By Lawrence J. Del Rossi

This sixth article in “The Restricting Covenant” Series discusses “mobile” veterinary medical practices, and some unique challenges to securing reasonable geographic restrictions for veterinarians employed in such practices.

Mobile vs. Brick and Mortar Locations

Like most domesticated animals, Maine Coon cats require periodic care and treatment from a veterinarian. For my first Maine Coon cat, I drove to the veterinarian’s office, which was a stand-alone fixed “brick and mortar” location. However, for my second cat, my veterinarian brought her “office” to me in a “vet-mobile,” which is a van-like, full-service veterinary hospital on wheels. This type of moving mobile practice can present some challenges when trying to construct and enforce reasonable and enforceable geographic restrictions for a non-compete or a non-solicit.

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