WHAT HAPPENS IF THE CONFIDENTIAL INFORMATION (PROTECTED BY AN NDA) IS LEAKED?
WHAT HAPPENS IF THECONFIDENTIAL INFORMATION (PROTECTED BY AN NDA) IS LEAKED?
WHAT IS CONFIDENTIAL INFORMATION? Except as otherwise provided in the Agreement, Confidential Information refers to in-form-a-tion that is maintained in confidence by or on behalf of a party, referred to as a Disclosing Party; and (ii) disclosed to other otherwise accessed, pursuant to the Agreement by another party, referred to as a Receiving Party.
WHAT TO DO IF CONFIDENTIAL INFORMATION PROTECTEDBY AN NDA IS LEAKED? CONTACT AN ATTORNEY Unfortunately, enforcing an NDA usually requires hiring an attorney and filing a lawsuit, an unpleasant and expensive proposition. An experienced attorney can minimize your risks, preserve your trade secret rights and provide a realistic perspective of your chances in the dispute.
ACQUIRE EVIDENCE Whenever trade secrets are lost you will need to investigate, or hire an investigator, to learn as much as possible about the trade secrecy loss. These investigations commonly require surveillance of employees. Investigation of the theft is crucial. Also, if you make public statements that contain improvable accusations of trade secret theft and you injure that persons reputation, you may be liable for defamation. When gathering evidence, you will need information about: The means of misappropriation Use of the trade secret. Who is involved in the chain of misappropriation?
DETERMINE WHAT LEGAL CLAIMS TO MAKE One legal claim youll make is that the person has committed breach of contract. In addition, you and your attorney must determine whether you have other grounds on which to sue the perpetrators. Each one you come up with may provide you with a separate remedy and separate damages. Here are some possibilities: Misappropriation of trade secrets. Breach of fiduciary duty. Copyright infringement. Conversion. Patent infringement. Trespass.
Criminal prosecution: Several states and the governments have passed laws that make the unauthorized disclosure, theft or use of a trade secret a crime. Under these laws the government, not private businesses, arrests the perpetrators and brings criminal charges DETERMINE WHAT YOU LOST AND WHAT YOU WANT Potential remedies can be used as leverage to end the dispute before a lawsuit is filed. Potential remedies include: INJUNCTIONS An injunction is a court order directed at those who have stolen your secrets. Asking for an injunction is common, since the primary goal of an NDA is to keep information secret.
COMPENSATORY AND PUNITIVE DAMAGES If you suffer a financial loss as a result of a breach of an NDA, you may be able to get a court to award money damages to you. Your damages are measured by either: the profits a competitor earned by using the trade secret, or the profits you lost due to the improper trade secret leak. If the person or company youre suing acted with spite or ill will or a disregard for the probable injury, courts in many states can impose punitive damages. These are damages awarded to you for the purpose of punishing the wrongdoer and providing an example to other would-be trade secret thieves.