Confidentiality Agreements

trade secretWhen many entrepreneurs think of trade secrets, they think of high-tech companies or large manufacturers. For example, software architecture and source code are generally protected using trade secrets. Another example of businesses that have many trade secrets is legacy manufacturers which need to protect how products are made, what products are made out of, etc. Famous examples of trade secrets from these industries range from Google’s® search algorithms to KFC’s® “11 secret herbs and spices.”

But all businesses – even the most “simple” – have trade secrets. At the very least, all businesses have customer lists, vendor lists, profitability/pricing information, etc. – with many businesses having much more. The best way to evaluate whether certain information might be a trade secret is to think about real-world business consequences. I often ask my clients,

If one of your best employees left for a competitor and took certain business information with them, would that be upsetting?”

If the answer is “yes,” then that information needs to be evaluated for potential trade secret protection. That can run the gamut from customer lists to the “secret sauce” that makes a business successful.

Whether your business is large or small, below are five important tools that can be used to protect trade secrets.

Legal Tools to Maintain Secrecy


Continue Reading 5 Tools Small Businesses Can Use to Protect Their Trade Secrets

Business relationships often lead to the exchange of sensitive information or access to highly confidential matter. When faced with this situation, is it enough to merely tell your business partner that something is confidential? Absolutely not.

Businesses should always protect their confidential information using a Non-Disclosure Agreement (NDA). NDAs are commonly used when businesses are contemplating or negotiating some sort of contractual relationship or deal. The NDA allows one party to share confidential and trade secret information with another and places restrictions on how the other party can use that information and obligates the other party keep such information confidential.

Under both the Federal Defend Trade Secrets Act and Florida’s Uniform Trade Secrets Act, trade secret owners must make reasonable efforts to maintain the secrecy of their confidential information. Using an NDA when disclosing confidential information demonstrates making reasonable efforts to protect that information.

However, some businesses do not have a standard form NDAs they can readily use. Also, many other businesses develop a general and broad NDA that they use over and over in all situations. Because it is good practice to have an NDA ready for situations where disclosure of confidential information is required, business should keep in mind the following issues to ensure they are adequately protected.

No Expiration Dates


Continue Reading 5 Simple Things to Keep in Mind with Non-Disclosure Agreements

Last week, the Defense of Trade Secrets Act (“DTSA”) was signed into law. The DTSA creates a federal legal scheme for the protection of trade secrets. Previously, protection of this form of intellectual property was solely a matter of state law, unlike patent, trademark and copyright, which have always been matters of federal law. The DTSA has a number of unique provisions, one of which immediately impacts employers who use confidentiality agreements with their employees. My colleague Suzanne Boy and I offer the following summary of this new law.

Whistleblower Protection

Due to concerns over the impact that confidentiality agreements might have on employees who might otherwise report their employer’s wrongdoing to the government, an amendment was tacked on to the DTSA to provide civil and criminal immunity to whistleblowers under state and federal law for disclosing confidential or trade secret information to the government as part of whistleblowing activity.


Continue Reading Why Employers Need to Review Employment and Confidentiality Agreements in Light of the Newly-Enacted Defense of Trade Secrets Act