In today’s Freedom Friday blog and email newsletter, I want to talk about a topic that comes up with some of my comments, and that’s NDAs, which is short for non-disclosure agreements. Many small businesses require employees and independent contractors to sign NDAs as part of their employment and/or independent contractor agreements. However, unfortunately, after an employee or independent contractor leaves your company, many small business owners find out that the NDA that the employee or independent contractor signed was breached. How do you handle that? In today’s Freedom Friday blog and email newsletter, I’m talking about how to handle a breached NDA.
Non-disclosure agreements, or NDAs, are enforceable contracts under Oklahoma law. Even if the NDA was already breached, you may still be able to stop additional disclosure, recover money damages, and require the return or destruction of data. However, before you do anything else, you need to review the NDA, preferably with an attorney assisting you, and make some key determinations. You need to understand how the NDA defines confidential information, provides any time limits, permits any disclosures under certain exceptions, and whether the NDA provides for specific remedies, such as injunctions and/or money damages. Also, many NDAs require any lawsuit for breach to be filed in a specific court (this is the jurisdiction clause).
Immediately after you learn about the breach, there are also certain action steps you should take. First of all, you need to preserve the evidence, which means gathering the necessary screenshots, emails, text messages, and any other documentation which proves the NDA was breached. Either you or your attorney also should send a cease-and-desist letter to the former employee or independent contractor that breached the NDA. You can also prevent further damage by revoking access, notifying key personnel, and freezing shared accounts, where appropriate.
Lastly, depending on the facts, you should be able to pursue legal remedies against the party that breached the NDA. You may be able to obtain an injunction, which is a court order stopping any further disclosure; money damages for lost revenues, competitive harm, or unjust enrichment; liquidated damages if the NDA set a specific amount; and likely attorney fees, if the NDA included a prevailing party attorney fees’ clause. As always, you should consult an attorney to protect your rights in the event that an NDA was breached by a former employee or independent contractor.
Thinking about starting a small business? Or maybe your small business is having issues with contracts, leases, business partners, collection issues, or experiencing other barriers to growth? Please contact me at Jonathan@libertylegalok.com to schedule a FREE strategy session.
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