If you’re any kind of consultant or contract programmer, and you’re an open-source person, one of the persistent minor (and sometimes not-so-minor) irritations of doing business is NDAs (Non-Disclosure Agreements). Your client will often want you to sign one. About 1% of the time they’re protecting actual business-critical information; the other 99% they’re suffering from an unfounded delusion that they’re protecting business-critical information – but the rigamarole is 100% annoying 100% of the time. Besides, even if (like me) you consider it a point of personal honor not to blab things you’ve been told in confidence, you probably have a philosophical objection to being gagged.
I haven’t signed an NDA in least the last 12 years of active consulting, and over my entire 27 years of such I’ve maybe signed a grand total of two NDAs, and I’ll never sign one again. Herewith, a short course in how to evade them.
The general rule is this: set up circumstances where the pain to them from having the NDA exceeds the extent to which they’re willing to trust you. Basically, this means that you have to make the NDA have potentially unpleasant legal consequences for them.
The best way I know to do this is to be a director or other officer of a corporation, with fiduciary responsibility to the corporation. You tell them: “I never sign NDAs because I refuse to end up in a no-win legal situation – the NDA terms might require me to violate my fiduciary responsibility, or vice-versa.” Back when I was a director of VA Linux, this was a nuclear bomb that immediately vaporized all talk of NDAs whenever I brought it up.
Even without a directorship, a variant of this works pretty well. Tell them you never sign NDAs because you’ve had other clients in the past and will have more in the future, and you don’t care to get caught in the no-win situation that an NDA puts you in the gunsights of a nonperformance or honest-services prosecution (or vice-versa).
If they press the point, tell them you’ll sign that NDA if, and only if, they will sign an agreement indemnifying you against all costs arising from any lawsuit arising from a conflict between the NDA and any future agreements or fiduciary responsibilities you may assume. That’ll usually shut them right up; they’ll set the limited downside risk that you’ll blab something against a potentially unlimited risk from a big messy civil lawsuit and fold up like cheap cardboard.
This does mean they have to need you enough so that the soft option isn’t to say “No NDA, no business,” and walk you out the door. But if they didn’t need you to cover something nobody in-house can do as effectively, they wouldn’t be asking for the NDA in the first place. So hang tough about this. Most NDAs are pro-forma, ass-covering gestures to begin with; chances are the person trying to get you to sign one knows this is true about his piece of paper and won’t fight very hard to defend it.
It’s always good to point out that you have a reputation to protect, and you’re not going to injure your client by flapping your lips because if word got around that you did that sort of thing you wouldn’t have any clients anymore. Stand on your dignity, point out that you’re a professional, and sound a bit offended at the suggestion that anyone would be crass enough to doubt your discretion (but don’t overdo that last part lest it seem like posturing).
This battle is worth winning for reasons other than avoiding legal risk. It sends a clear message that you are a professional with a backbone and a clear sense of your own worth – not to be jerked around and chickenshitted at. And that is always a good thing to establish before the job starts.
Well said, and broadly applicable even if you haven’t a consulting job. The final paragraph refers to something critical for each person’s professional development: “a clear sense of your own worth.” Developing that matters for everyone, both professionally and privately. Developing an accurate sense of your own worth–that’s a bit more of a trick.
esr wrote: “This does mean they have to need you enough so that the soft option isnâ€™t to say â€œNo NDA, no business,â€ and walk you out the door.”
For those of us who, unlike you, are mere mortals (i.e. don’t have Knuth visiting our blogs), there’s always somebody else who can do it who WILL sign the NDA – so we will get shown the door.
ESR says: But these tactics worked for me back when *I* was a “mere mortal”. They can work for you, too.
I agree. Essentially there are both legal and moral objections to documents of the nature of NDAs. Let us first of all realize that all business contracts need not necessarily be legal or even enforceable in a court of law. If a court asks you to disclose the information no NDA can override the court’s ruling and you will be protected in law even if you have violated its terms.
What I find really annoying in many online discussions is the sanctity that some lay people insist on documents like contracts, NDAs or software licenses.
I believe this is the case in most parts of the world (I am an Indian and I study Law in India).
How do you feel about a verbal/e-mail agreement saying that the NDA is not something that will be enforced and it just needs to be signed so upstairs management can be happy?
>How do you feel about a verbal/e-mail agreement saying that the NDA is not something that will be enforced and it just needs to be signed so upstairs management can be happy?
“Here. This agreement gives me title to all the intellectual property held by your company. Don’t worry, it won’t be enforced, it’s just to make my wife happy.”
> What I find really annoying in many online discussions is the sanctity that some lay people insist on documents like contracts, NDAs or software licenses.
Any contract or agreement with my name on it (signed by me) is my word. To not treat my word as sacred is to completely dishonor myself. However, I am a practical being as well, and if the other party does not hold up to their bargain, I have no qualms with failing to uphold mine should the need arise as I have given my word to the agreement in full only.
> “ESR says: But these tactics worked for me back when *I* was a â€œmere mortalâ€. They can work for you, too.”
I must respectfully disagree.
First, you were always a high-quality hacker, meaning that your productivity/ability/talent would allow you to find another gig orders of magnitude easier than a “mere mortal” developer, even a reasonably good one. What changed was not your skills, but the world’s recognition of them; and a good employer doesn’t need *world*’s recognition to recognize them to hire someone.
Second, back then, there were no uber-cheap small indian outsoursing outfits to underbid you by several orders of magnitude, and majr outsourcing outfits like Tata/Oracle/IBM to underbud you by an order of magnitude with a neat C-level-friendly presentation of how they are superior. These days, a “mere mortal” developer is a lot less secure in finding/keeping a job, and thus can’t afford to be as unyielding as in the olden days when it was the employee’s market as far as software development.
I’m curious – are there actual objective, *practical* technical or legal (aside from “it besmirches one’s honour” personal or philosophical) reasons to avoid signing an NDA?
I can understand the downsides from something like a non-compete agreement, but what harm can an NDA realistically bring to the signee? The arguments proposed to be given to the employeer when refusing in this post sound rather theoretical, at least from the standpoint of someone like me who never did consulting work.
> Any contract or agreement with my name on it (signed by me) is my word. To not treat my word as sacred is to completely dishonor myself.
It might be your word, but the law of your land has greater sanctity that your word.
Private contracts are subject to the public law. Any contract that is in violation of existing law, or is unenforceable, or whose terms are unreasonable, or which does not provide due consideration, or which is for an immoral purpose, or is against public policy, or is not for a purpose of business, or where the consideration is not real but perceived can be nullified by a court of law.
I could argue that some kinds of NDAs are against public policy. A court of law can easily nullify such NDAs.
>Iâ€™m curious â€“ are there actual objective, *practical* technical or legal (aside from â€œit besmirches oneâ€™s honourâ€ personal or philosophical) reasons to avoid signing an NDA?
If you have fiduciary responsibilities, there sure as hell are. I was not pretending about the conflict problem there.
Reasonable people may differ on how serious the issue is for independent consultants. I take a pessimistic view, e.g. avoiding any legal instrument that opens you to lawsuit is a good idea.
ESR wrote: ‘But these tactics worked for me back when *I* was a â€œmere mortalâ€.‘
I’m sure those tactics did work for you or you might not have gotten in the habit of refusing. And I’m sure that any competent hacker can find some gig, somewhere, at some rate without having to sign an NDA. However, any time someone puts up additional barriers between himself and an opportunity, there’s certainly a risk that the opportunity won’t materialize.
I’ve also been on both sides of the table and when I hire consultants now, I insist on an NDA. The primary reason has nothing to do with disclosure. The primary reason is that refusal to sign it is a red flag. It indicates to me someone who is going to be harder to work with than average. And having read esr’s blog for years now, my bet is that he’s harder to work with than average as well. I don’t know that for sure, of course. And if I desperately needed his skills, sure, I’d waive the NDA. But the two times ever (out of dozens) where a potential consultant/hacker refused to sign our NDA, I did indeed show him the door and instead used someone else.
Why wouldn’t I? There’s no downside to me. Because, in case you haven’t noticed, this is an employers’ market and there are plenty of high quality people who are willing to bend over backwards to get the work – at least where I am
>The primary reason is that refusal to sign it is a red flag. It indicates to me someone who is going to be competent.
There, fixed that for ya.
One kind of NDA I would sign would be one that completely expired on such-and-such date. Some vendors want to keep things secret until the official release of some dingus so they want consultants to sign such a thing. However, if, once that date arrives, the whole agreement expires, then I don’t see much danger in that. (This assumes that the rest of the conditions of the NDA are reasonable).
I’m not generally looking for legal competence in a technical consultant.
So is there no place for an NDA? If two large corporations form a Joint Venture, is it not appropriate for them to have a Joint NDA as part of their agreement? How about two small corporations? How about two corporations where one of the corporations only has one employee?
The last case is what I really mean when I say I hire a consultant. Technically, I contract with a corporation to provide services and the NDA is with that corporation and binds the principals of that corporation to the terms of the NDA. The corporation may have only one person (the consultant) associated with it, or it may have many. So it’s just a particular case of intercorporation agreements.
>So is there no place for an NDA?
In unusual circumstances. But they’re grossly overused for purposes of ass-covering when the actual risk of disclosure is minimal and (as Morgan correctly points out) they’re usually unenforceable anyway. Then, too, there are utter jerks like you who use them – and even admit to doing so! – as a test to see whether the programmer will jump through a non-performance-related hoop like a nice doggie. Which just strengthens the case for not signing them.
As you point out, NDAs aren’t worth the paper they’re written on. They’re almost completely unenforceable in court, Ditto for the “non-compete agreements” they usually have you sign along with them. There are laws that protect your right to earn a living, and these can’t be legally signed away. Any conditions of a contract that are illegal are automatically null and void. These sorts of agreements are like those signs that say “[skate|swim|store your stuff|etc.] at your own risk. We are not legally responsible for [injury|loss].” Complete bullshit.
Once you know that and they know that, convincing them that you aren’t going to sign it really isn’t very hard.
However, just because you didn’t sign an NDA, it doesn’t mean that your fiduciary relationship to that customer goes away. You still have protect the information that they tell you is confidential, because you still face potential liability issues if you disclose it. Knowing that piece of information will help in negotiations revolving around what you will and won’t sign.
Practicing law without a license now? Dude, you’ve got brass balls.
> If you have fiduciary responsibilities, there sure as hell are. I was not pretending about the conflict problem there.
Could you give an example of how fiduciary responsibilities can conflict with an NDA? Are there examples of Directors being held liable for not disclosing information covered by an NDA? In my experience most well-drafted NDAs will have exceptions to the main confidentiality obligation covering this sort of scenario.
>In my experience most well-drafted NDAs will have exceptions to the main confidentiality obligation covering this sort of scenario.
I have never seen an NDA that was “well drafted” in this sense. If you show me one that you think is well drafted, I’m pretty sure I can easily craft a hypothetical that puts the signer in a no-win situation.
I’ve never been asked to sign an NDA at a contracting gig. At my full-time employment, I did, but then again I was (as part of my job) accessing HIPAA-protected data, and writing secure database access to such data, so then again maybe that was important.
For all the smaller companies, I guess they saw me as trustworthy, with 24×7 access to the facilities, root access to all systems, even the routers/firewalls, and keys to all the offices. This is my most valuable asset: that I keep secrets, NDA or not.
@esr – But do you agree that, in choosing a consultant who won’t sign the NDA over the one who will, the hiring company opens *itself* to the charges of abdicating fiduciary responsibility? If they are hiring ESR, it’s one thing – they can skate by on waving the NDA in light of your stellar reputation.
If they are hiring Joe Schmoe the consultant who is not THE ESR, and said consultant – accidentally or not – blabs – If I were to sustain a financial loss as a customer or shareholder because of said blabbing, I’d sue the heck out of the company. And if it comes to light that they maid such a decision, I’m fairly certain the case would go against the company, though my certainty is of somewhat dubious worth, not being an actual lawyer an all :)
>@esr â€“ But do you agree that, in choosing a consultant who wonâ€™t sign the NDA over the one who will, the hiring company opens *itself* to the charges of abdicating fiduciary responsibility?
No, because the damn things are almost never enforceable anyway.
NDAs and noncompetes are like junk patents; they exist mainly to create a paralyzing cloud of FUD around weak parties, but collapse when challenged.
Donâ€™t worry, it wonâ€™t be enforced,
“Well, you wouldn’t mind writing that in at the bottom before I sign it then, would you?”
I’ve been tempted, sometimes, to point out to HR drones who proffer such paperwork something along the lines of “don’t you realize that the access you’re about to give me provides, if I weren’t honest, the means to leave your entire company a smoking ruin of debt, despair, lost customers, and horrific PR, from which you’d almost certainly never recover, and if you could, would certainly be far too busy and far too broke to pay your lawyer to sue me?”
Seriously…if you don’t trust someone enough to waive the NDA, you really shouldn’t be giving them root on your servers or a commit bit on your source repository, whether they sign the NDA or not.
I’ve signed some egregious documents in the past, knowing they wouldn’t be enforced. Were I to start a startup and get venture funding, I’m pretty sure at least four former employers from the ’90s and early ’00s would be able to line up at the courthouse to sue me for ownership of it…if any of them were still in business. Ironically, my experience with companies that are likely to last long enough to try to enforce an NDA or noncompete agreement are much more reasonable in the terms of such documents. The whole “we own every thought that passes through your head between two weeks before you were hired and 20 years after you leave, and when we fire you we reserve the right to prohibit you from ever working in your profession in any English-speaking country again” crowd never last.
I’ve only signed a couple of NDAs while I was self-employed, and I regretted doing work for those companies.
I’ve also walked away from deals where the NDA and non-competes were absolutely ridiculous. I have never had a qualm about doing so. In my experience, NDA and non-compete waving clients on contract deals tend to be slow-paying jackasses with overinflated senses of self-worth.
The funny thing is, the clients that didn’t have issues negotiating a contract-for-services without such extraneous paperwork were some of the best I’ve ever had the privilege of working with.
And I’m just an average network engineering hacker.
As for the comment about not expecting legal competence, well, if you’re self-employed or a small business owner (same thing, really), you’d either better have enough cash to run every bit of paperwork by a lawyer, or learn enough on your own to know when you’re probably getting taken for a ride.
To not have a basic understanding of contracts and agreements while attempting to make it on your own as a contractor, well, you’re just begging to get screwed by your clients, and they won’t even buy you dinner first. Hell, that experience was that much more valuable when other circumstances in my life shoved me back to full-time employment, as it put me on a superior footing when negotiating with my current employer.
You mention two no-win legal situations: “the NDA terms might require me to violate my fiduciary responsibility, or vice-versa” and “an NDA puts you in the gunsights of a nonperformance or honest-services prosecution (or vice-versa)”
Can you explain what the second items are (I already know what fiduciary responsibility is) and how both might conflict with an NDA?
> Can you explain what the second items are (I already know what fiduciary responsibility is) and
> how both might conflict with an NDA?
If I understand correctly, it goes like so: if you are under an NDA and can’t talk about the work performed, then you are unable to show evidence of performance or services rendered if such an accusation comes up. So you end up either unable to defend yourself from one lawsuit without potentially coming under fire from another. No-win.
Almost. Let’s say I’m a director or managing partner for the consultancy of Dewey, Cheatham and Howe. DC&H has a client, Acme Widget Co., which designs and manufacturers widgets for Fortune 500 manufacturing firms. Acme needs my expertise in database engineering to help design and tune a database for their in-house product management system, Widget Center Professional Extreme Edition. Since WCPEE is to be tightly integrated into their proprietary just-in-time manufacturing process (or more so than their old system, Widget Center Lite), which Acme believes gives them an edge over their competitors,
In order to report my time to DC&H, I need to disclose what I’m doing. But the NDA I signed with Acme doesn’t allow me to do that; I can’t even report what I’m doing to my own company! (NDAs are frequently worded this way.) As a director of DC&H, I have a fiduciary responsibility to account for my time, but as a contractor working at Acme who signed an NDA, I can’t do that.
So DC&H could sue me or just not pay me, and Acme could sue me if I disclose the information to DC&H.
This is actually a ridiculously distorted scenario; Acme’s not really going to sue me for reporting my time and activities to DC&H, since DC&H may have signed a similar NDA. But things get real if something goes wrong with the system at Acme and I have to explain very crucial (and private) details of the system to explain what happened and why to DC&H, to whom I have a fiduciary responsibility.
Does that clear things up?
The general point was about the sanctity people treat contracts with, if I sign it, it’s my word, law or not. Concerns over the actual legality of the contract in question are an entirely different subject, and have no bearing on whether a person should consider an agreement they made to be sacrosanct.
esr wrote: “…utter jerks like you…”
Nice ad hominem. The sequence illustrates my point nicely:
esr: “Iâ€™ll never sign one [an NDA] again”
me: “[The refusal to sign an NDA] indicates to me someone who is going to be harder to work with than average.”
esr (paraphrased): “You’re a jerk”.
That’s what I like about this blog. So much unintentional humor.
>Nice ad hominem.
OK, now I’ll add “fool” to “jerk”. It’s only an ad hominem when you attempt to refute an argument by attacking the character of the speaker. But I’m not asserting that NDAs are bad because you’re a jerk, I’m observing that you are an utter jerk because you use NDAs as a test to see if a programmer or consultant will eat any chickenshit you care to hand out. This is completely logically independent from the problems with NDAs themselves.
I’ll spell something else out for you, since you seem logic-challenged. I’m not calling you a fool to refute your argument, I’m calling you a fool because you toss around terms like “ad hominem” without actually understanding what they mean. On that basis, I’m betting you were a lousy programmer. (And that wasn’t an ad-hominem either.)
You’re right, for you I’d be difficult to work with. I generally am, for jerks and fools. The solution is, don’t be these things. Your incentive to not be one is that competent people avoid jerks and fools, because they can. By valuing submissiveness over competence you’re engaging in a form of continuing self-sabotage.
This post includes a great howto for negotiating in this situation. But most people have more power (a lot more power) than they realize in most situations.
This maxim is widely accepted as true in the large, but most people don’t bother, because they feel uncomfortable, or they think it would take too long to get approvals, or they think they have poor negotiating skills, or whatever.
Buying a car? Strike through anything you don’t like in the contract. (The arbitration clause is the first to go.) Add things as necessary. Did the salesman promise you something later, like an extra set of keys on delivery? Write it down.
Renting a car? Same thing. Last time I was in England, the lady at the budget counter had a special document for Americans to sign if they were relying on their Visa cards for CDW — it said that I could decline the CDW, but that if Visa didn’t pay, I was responsible for anything that broke down on the car. It was worded so broadly that if the engine died with no wreck, I could have been responsible. I pointed this out, and she said “well, obviously it’s for when it’s your fault.” So I said, “sure, but if we’re having it in writing, then we need to have it correctly in writing” and proceeded to edit it to suit my tastes.
I do this all the time. I’ve done it at the title company, when buying and selling houses, as well. Never any problem — nobody has ever refused to do business with me just because of some reasonable edits to standard form documents. On the one hand, I’m probably no better off now than if I hadn’t made those edits. On the other hand, it’s a risk/reward ratio thing — even though the risk of something going wrong is very low, I would still prefer that the “reward” not be too painful…
Actually, I just remembered: there *was* one time, when I wound up not doing business with somebody because they couldn’t accept my edits to their document. We went round about 4 times on the document, before I said I couldn’t do business with them, because they kept slipping the same kind of text in in different ways in different places in the document every time they sent it back to me.
I was going to do around $4000 worth of consulting for a defense contractor that was going to sell my work as part of a huge multi-million dollar system. They wanted me to indemnify them for patent infringement.
> Next time somebody tries to sell you obedience under the color of cooperativeness, refuse. You’ll be better for it.
An interesting sentiment from someone who requires disclosure of personal information (an email) address to merely post a comment on a blog. While I understand your point about non performance related hoops, I wonder how often we as a people put others through various irrelevant hoops for our own benefit.
>An interesting sentiment from someone who requires disclosure of personal information (an email) address to merely post a comment on a blog.
That’s interesting. I didn’t form that requirement, it’s pretty much built into wordpress. Do you know how to turn it off?
We’re in nearly complete agreement then.
People like me (jerks and fools) ought to keep insisting on NDAs in order to avoid working with people like you because we value what you call “submissiveness” and what I would call “civility” and “cooperativeness”.
And so I will.
>we value what you call “submissiveness” and what I would call “civility” and “cooperativeness”.
Ah, the continuing refrain of petty authoritarians everywhere, confusing civility with obedience. Bad enough that you feel a need to wield a whip hand; worse that you expect others to kiss the whip. But your character flaws aren’t my problem. Fortunately.
Note to those of you who think I’m a “superstar”: To the extent that’s true, I became one because of a studied refusal to put up with shit like this. Next time somebody tries to sell you obedience under the color of cooperativeness, refuse. You’ll be better for it.
If the above seems confusing, here’s a clue: “cooperation” happens between equals.
>An interesting sentiment from someone who requires disclosure of personal information (an email) address to merely post a comment on a blog.
ESR is providing the blog for free, and allowing us to post our opinions on it in comments. It is entirely stupid to complain about the comment policies of blogs that you do not pay for. Asking for an E-mail seems quite reasonable to me; for one thing, it makes it (somewhat more) difficult for people simply to forge comments from others.
“By valuing submissiveness over competence you’re engaging in a form of continuing self-sabotage.”
Just to play the advocatus diaboli, I’m not sure it is always true. A middle-manager in a big corporation isn’t necessarily incentivised to find the best talent he can or generally to make some truly excellent work happen for moderately expensive costs. It is a wholly different story than that of the entrepreneur, the business-owner. I won’t go into a detailed incentive analysis here but it suffices to say, a moderate success or average result while being able to prove he did everything by the book can make him look better in the eyes of his superiors than oustanding success while some things are against the company rules/customs/culture.
I found the following a good, useful heuristic: always assume that an average, typical big corporation is much similar in culture / internal incentive systems to some sort of a government bureau than to an entrepreneur.
We could even make a general economic law of it: incentives get diluted by every step by which the decision-making person is removed from people who actually own things, and what matters is not whether the organization in question is officially called public or private but the actual number of such steps, and the main reason we see public working worse than private is not because it is different is essence but because the number of such steps is usually much higher. But in “big private” the number of such steps is big too, compared to the individual entrepreneur who manages his own business.
Which perfectly illustrates the point, ESR is asking for obedience (email addresses, and the implied lack of anonymity that comes with that) as a form of civility (not forging comments, and presumably not spaming or trolling) .
And asking for an NDA seems quite reasonable to others, for one thing it make it (somewhat more) difficult for people to simply leak information with impunity.
The point is, every group of people, from bloggers to weasels with suits who don’t understand IT, have irrelevant hoops for people to jump through. It’s part of the social rituals that we use to assure one another we are agreeing on certain rules of behavior and can conduct business together.
It is well within the rights of someone to refuse to participate in these rituals (as esr has), but it would be wrong to not acknowledge our own rituals of obedience as civility.
Sign the NDA.
Remember: Bill Gates told IBM to get the guy who developed CP/M to develop DOS. He refused to sign an NDA. So they turned around and asked Bill Gates to develop DOS.
In this case, IBM had damned good reason to not fold.
Yep. An interesting point to consider — the most popular open source licenses are written from the point of view that the copyright holder and the licensee are equals; constrast that with closed-source EULAs, where the licenses are written from the assumption that the end user has absolutely zero rights to do anything with the software.
Consider this: there is no provision enabled to verify that the address you’re giving is YOUR address, unlike some blogs where you have to create an account or have an OpenID to post. IOW, it’s on the honor system except for the spam filter. Of course, your IP address is logged, so lie at your own peril. ;)
@James A. Donald:
That’s an apocryphal story. So’s the one where Gary Kildall (that’s who we’re talking about) was out flying — that one was started by Bill Gates, who had a bunch of misconceptions about the whole story, probably because he was only half-paying attention Jack Sams’ recount of the problems he had negotiating with DRI.
In reality, Gary left license negotations to his wife, who had (rightly) refused to sign an NDA (or anything else) without Kildall’s approval. Kildall was out somewhere and couldn’t be reached, so IBM got impatient and went back to Bill Gates, who had recommended DRI and Kildall to IBM in the first place. Long story short, Gates agreed that MIcrosoft would get them an OS, and the rest is unfortunate history.
That just further helps illustrate that it’s an non-functional hoop designed as nothing more than obedience offered as civility. It’s as unenforceable and useless as a poorly written NDA or any number of contracts, and yet it’s included as a sort of social boilerplate.
Again, I’m not saying anything against ESR’s (or anyone’s) refusal to sign an NDA, I’m simply pointing out that there are probably tons of hoops that we make others jump through all the time that boil down to nothing more than obedience as civility, and we probably don’t even realize or think about it.
Tying in another thread… Are women in IT more/less likely to sign NDAs? If less, is that manifested as trying to negotiate a way to take the job without the NDAs or “screw this, I’ll do something else”?
[NDAs are] almost completely unenforceable in court, Ditto for the â€œnon-compete agreementsâ€ they usually have you sign along with them.
This is pretty much the opposite of true.
That most NDAs and NCAs go unenforced owes to the reality that ESR pointed out in his post: they’re largely pro forma ass-covering, protecting by contract a trivial right. Holders of such rights weigh the cost of vindicating them through the legal system ($BIGNUM) against the actual damage to the business resulting from the violation (typically approaching zero), and most often decline to pursue the matter.
It happens more than occasionally, however, that there is significant damage to the business resulting from a violation of a right protected by an NDA or NCA, such as justifies the cost of a lawsuit. When that happens, courts will enforce the terms of the agreements. There is nothing about these contracts that renders them legally infirm: indeed, most 1Ls will read at least a couple of cases in which NDAs or NCAs are upheld as part of their Contracts coursework (usually during the study of the concept of consideration, by way of demonstrating that courts generally do not inquire into the sufficiency of consideration).
(I am formerly a software engineer, presently an attorney.)
>That just further helps illustrate that itâ€™s an non-functional hoop designed as nothing more than obedience offered as civility.
Disagree completely. Equating spam with incivility is almost as bad as equating civility with obedience. Sure, at the limit, incivility degenerates into war, and spam is somewhere on that continuum, but the term “incivility” is usually used to refer to the occasional “fuck you!”, not the burden of spam that can completely overwhelm a discussion.
The tuple (name, email, IP address) probably helps greatly to filter spam. Individual values aren’t really that important, as long as the . Remember that while monikers aren’t at all unique, and lots of company employees can share an IP address, email addresses hopefully are unique.
Put in a fake email address if you want. Put in a real one if you want to enable side-channel communication.
Now, it may be that the tuple (name, IP address) would be sufficient to help filter spam. In which case, it might be a valid criticism of Eric that he didn’t go and figure out how to disable the wordpress mandatory email address requirement. Except it’s not a valid criticism to only raise it after the fact in a different context, and it may not be a valid criticism to raise it as something that Eric purposely did — I assume it’s a wordpress default. If it bothered you, you could have posted with a fake email address, and explained why, and asked it to be changed.
Remember, the maxim is “Everything’s negotiable,” not “Everything should be pre-negotiated in your favor.”
If you read carefully, Eric nowhere stated that he doesn’t work with people who ask for NDAs — quite the opposite. His whole thesis is about dealing with those people, without actually giving them an NDA.
So, let me write the same howto for dealing with Eric’s website if you don’t want to give an email address: “Put in a fake one.”
See how that works? Morgan was absolutely correct. Eric is not going to email you and demand you click on a link to prove you’re you. Other sites do that. So, just as, when you don’t want to sign an NDA, there are some companies you won’t be able to deal with, so it is that when you don’t want to give out a valid email address, there are some websites you won’t be able to deal with. It just so happens that this website isn’t one of those.
>If you read carefully, Eric nowhere stated that he doesnâ€™t work with people who ask for NDAs â€” quite the opposite. His whole thesis is about dealing with those people, without actually giving them an NDA
That’s correct. And I keep their secrets, too.
esr wrote: “Ah, the continuing refrain of petty authoritarians everywhere…”
Too funny! Causing one of those embarrassing laugh out loud moments when a coworked is walking by.
Apparently, esr has never read his own posts and comments from an objective perspective or he would at least have an inkling of how intimately in touch he is with his inner petty authoritarian. Or at least his postings read that way to me which makes his comment quite humorous to me.
“always assume that an average, typical big corporation is much similar in culture / internal incentive systems to some sort of a government bureau than to an entrepreneur”
A corporation large enough to have developed tumors of “middle management” is essentially just a government without an army. (Of course, the lack of an army means they must, if they desire my money, obtain it by persuading me that the transaction would be to my advantage as well as theirs, rather than just showing up and threatening to shoot me if I don’t pay up. That makes them far better _neighbors_ than any government in the history of the world. But not necessarily better _employers_ or _clients_.)
I would argue that abusing the benefits and offerings of society (and our gracious host) in such a way as to render it impossible (or near impossible) for others to enjoy those same benefits is the very definition of uncivilized behavior. Indeed Oxford defines incivility as: “rude or unsociable speech or behavior:” which I think anyone would agree spamming a site is.
Further, that it serves some small perceived purpose, that it is standard boiler plate, or that it is unenforced and easily defeated (all points made about the NDAs as well) does not in any way shape or form change the fact that it is a form of non functional hoop that people are forced to jump through to (attempt to) prove they will comply with the rules of civilized society, just like an NDA.
Finally, I have said nothing to the point about whether or not one is able, should or is right to refuse to jump through such hoops, so your entire bit about me reading more carefully is wasted. I was merely pointing out what I found to be an amusing sentiment from our host given that he provides his own obedience for civility hoops for his guests to jump through as well.
And I suspect that most NDAs are formed into the business requirements and given people without the knowledge to “turn them off”. Does the fact that it is mandated from above somehow make it less onerous?
Again, whether you do or don’t work with such people is besides the point. The point is you have decried what you see as an evil of sorts (non functions hoops of obedience in the guise of civility) and at the same time you engage in your own (admittedly lesser) obedience hoops.
>and at the same time you engage in your own (admittedly lesser) obedience hoops.
Oh, nonsense. I don’t make you enter your name as a test to see if you’ll be properly submissive later.
I hate to think I have to say this, but I think I should be clear. I’m making no slight against esr or anyone else who might have a blog but also think NDAs and other forms of obedience as civility hoops are evil. I am simply pointing out that such hoops exist in many different walks of life, and that they may exists less as a authoritarian gesture and more of a sort of social boiler plate. Things that are done simply because they make up that ritual of being welcomed into whatever tribe we happen to be discussing.
The interesting question is not whether our host is a hypocrite (he’s not) or even whether NDA’s are effective or have a real purpose (they are and they do), but rather how many and what sort of obedience hoops do we make others jump through as part of our day to day lives that we don’t even think about, perhaps because we jump through them ourselves.
Shenpen made a point once about capitalism functioning with minimum trust between individual transactors; i.e., we have mechanisms in place that allow near-complete strangers to do business without worrying that they’ll get screwed by the other guy. This is akin to well-modularized computer programs which try to minimize the interface between modules.
One of these mechanisms is the threat of lawsuit for stepping outside the bounds of acceptability.
This is why businesses usually did and still often do put their trust in proprietary software over open source: because “you gotta have an ass to drag out on the carpet if it doesn’t work”.
This is also why NDAs exist. Programmers have a reputation as being fickle prima donnas with a superiority complex and inherently untrustworthy. Characters like Dennis Nedry from Jurassic Park shape the stereotype of technical people to nontechnical people. Articles like this represent the rule rather than the exception in terms of management’s view of the average programmer. Requiring an NDA is a way for a business to engage with members of a frightening and untrusted group with confidence — part of the minimum-trust mechanism of capitalism.
I don’t like them either. But unless you are Eric Raymond, or have otherwise accumulated repute amongst your client base for your professionalism and discretion, NDAs will be part of the equation at least while you work on accumulating that whuffie.
Speaking of which, maybe some sort of open-source, formalized reputation system for contractors can be set up so that clients know who the good and bad eggs are — akin to credit for money? I think hire-a-programmer-by-the-hour sites have similar systems in place… of course some of those same sites also go well beyond signing documents, making you install spyware that takes screen shots and webcam shots every minute so the client knows you’re working…
> >@esr â€“ But do you agree that, in choosing a consultant who wonâ€™t sign the NDA over the one who will, the hiring company opens *itself* to the charges of abdicating fiduciary responsibility?
> ESR: No, because the damn things are almost never enforceable anyway.
I’m sorry, but this does not answer my question at all. I was NOT in any way, shape of form caring about enforceability in the question I asked. I was caring about whether a jury or more likely a judge would rule that by NOT requiring an NDA to be signed when it was supposed to be, the company abdicated its fiduciary responsibility to protect the shareholder or client.
I posit that the judge would rule that not requiring an NDA – in light of the fact that the supposed damage was done via disclosure – was such an abdication.
The fact that a random NDA might or might not be enforceable is irrelevant, especially in light of the fact that the NDA is an industry standard practice.
Let me add to my above comment that certain overly-onerous NDAs and NCAs can be void on grounds of public policy. For example, to the extent that an NCA prevents someone from securing meaningful employment anywhere in his or her field, no court will enforce it. Similarly, courts have declined to enforce NCAs beyond the expectations of the parties at the time they enter into the agreement (i.e., the worker is abiding by the agreement until the holder of the non-compete right moves into a new market outside the contemplation of the parties at the time the NCA was signed).
But the idea that NDAs and NCAs are in general unenforceable is simply wrong.
“…Thatâ€™s interesting. I didnâ€™t form that requirement, itâ€™s pretty much built into wordpress. Do you know how to turn it off?….”
Well, it forces you to enter an email address…it doesn’t verify it or anything – I just enter “email@example.com” figuring that esr is smart enough to (should it be necessary) hunt me down regardless ;)
I am definitely swinging for you, esr, on this one. I’ve never taken the approaches you suggest, but I have forced drastic rewrites. I may actually be able to dig one up that you might sign.
I feel much the same way toward contracts that contain a clause like “we own your thoughts while you work for us” – I don’t sign that shit…and I tell them why. Never lost a job because of it…..they always just ripped it out.
Hmmm…well, a lot depends on scope and who the actors and players are. NDAs and NCAs often overstep legal boundaries. I’m not saying that they’re 100% unenforceable all the time, just a lot of the time, especially in the case of people who are W2 employees who sign them, vs. an independent contractor. Lots of times they attempt to get you to agree not to go work for a competitor. Lots of times, these provisions are in direct violation of state labor laws and even when they’re not, courts are reluctant to enforce them when you’re talking about someone’s livelihood.
Bear in mind that generally if any part of an agreement, especially an NDA or NCA is unreasonable, the court will declare the entire document null and void.
You might be a lawyer, but it’s obvious your area of specialty isn’t labor law.
I almost can’t believe you referenced “state labor laws” with an air of righteousness, Morgan ;)
Ooooh….it violates State Labor Laws…..does it violate OSHA too?
As if I fucking care.
(yes, I’m just dicking around)
Bear in mind that generally if any part of an agreement, especially an NDA or NCA is unreasonable, the court will declare the entire document null and void.
In contract law, one keyword that is of relevance here is “unconscionable”
And companies don’t issue NDAs as a test to see if you will be properly submissive later either. Doesn’t make them any less offerings of obedience as civility. People who comply with the particular request are as a whole likely to be more civil than those who refuse, so we have such requests.
As you point out in another article, this says nothing about any individual person, but I would bet that the number of people who refuse to sign an NDA for similar reasons to yours is roughly equal to the number of people who don’t want to enter an email address because of their privacy concerns. That is to say, if you took down your email / name requirement, I suspect you would see more new spammers, trolls and internet miscreants than you would people who just didn’t want to give up personal information.
Similarly, I imagine that most businesses would find that eliminating the NDAs would bring more Jason Chen’s than ESR’s to the table.
My father is an entreprenuer and was the whole time I was growing up. I learned a lot more about business, business law and especially labor law in the real world than any mere law school graduate could hope to have.
> The general point was about the sanctity people treat contracts with, if I sign it, itâ€™s my word, law or not. Concerns over the actual legality of the contract in question are an entirely different subject, and have no bearing on whether a person should consider an agreement they made to be sacrosanct.
Sure contracts have SOME moral force, but It rather depends on the individuals’ own moral sense, doesn’t it? Unless both the parties ot it are of the “same mind” a contract has no meaning at all. The only context in which a contract makes sense is with respect to its legal enforceability in courts of law.
Perhaps this is why you don’t understand the sanctity with which some people treat contracts. To some people, an agreement is more than just the sum of the forces of law. There are things which are right, and things which are legal, and the two are not always the same. That all too often people view contracts as little more than the limits of the law binding them together is why we have massive ass covering legal documents that have to spell everything out in its minutest of detail. It appears that too few people understand that just because the law can’t make you do something doesn’t mean that you still shouldn’t do it.
ESR speaks of the fact that his honor and reputation speaks to his ability to keep a secret, hence the lack of need for an NDA, but perhaps the NDA exists because too many people take the view you appear to be taking Hari, that an agreement is only as good as the law the forces participants to comply.
> the law of your land has greater sanctity than your word.
Wow — a real live, honest-to-god, literal state worshipper. I always thought that term was purely metaphorical.
> Wow â€” a real live, honest-to-god, literal state worshipper. I always thought that term was purely metaphorical.
That is the reality. I am a realist. I don’t worship it. But I recognize the power of the state to enforce its will upon me if it really got down to that.
> ESR speaks of the fact that his honor and reputation speaks to his ability to keep a secret, hence the lack of need for an NDA, but perhaps the NDA exists because too many people take the view you appear to be taking Hari, that an agreement is only as good as the law the forces participants to comply.
In business assuming everybody will be as honest as you are is the first step to failure. Creating unenforceable/voidable contracts is again a big mistake. Sure, there will always be a certain level of trust, but you cannot stake huge sums of money on that trust alone.
I’ve had too many examples from people around me who’ve ruined themselves because they relied on the “word” of their partners and so on.
> Wow â€” a real live, honest-to-god, literal state worshipper. I always thought that term was purely metaphorical.
I also wanted to add that I really have great respect for the law and the legal system because I am a law student. I can be idealistic about the law, but that doesn’t translate into an automatic worship for the other organs of governance.
So long as there is an effective independent judiciary, the law of the land is what protects the citizens from the arbitrary autocracy of the State.
> tell them youâ€™ll sign that NDA if, and only if, they will sign an agreement indemnifying
> you against all costs arising from any lawsuit arising from a conflict between the NDA
> and any future agreements or fiduciary responsibilities you may assume.
This is a really good idea, since it harnesses the same ass-covering logic that motivates the NDA in the first place. I think in future I’ll go straight to this option.
I’m just in the middle of negotiating a contract where I will be using an external developer, and I won’t be using an NDA. I will be using a confidentiality agreement, since they will be handling confidential data belonging to my employer’s customers and I need to be able to audit the security of that data. In particular, I need them to be committed to not processing that data outside the EU without renegotiating (ie their servers have to be in Europe) because of the data protection regulations – data outside the EU has to be in a legal regime where Safe Harbour applies, otherwise a foreign government could seize the data and result in my breaching data protection (privacy) obligation to my customers.
Would a contract along those lines – one relating to the confidentiality of data rather than code – be something you’d have a problem with signing?
>Would a contract along those lines â€“ one relating to the confidentiality of data rather than code â€“ be something youâ€™d have a problem with signing?
Less of one, certainly, as it is unlikely that would hinder me from writing code later on.
The problem is that there are widely varying values of “effective” and “independent.” :-/
Oddly enough, this sometimes happens in reverse. I had a moderate size job that I wanted to contract out (couple of man-years), and invited a few developers to come in to discuss it. One of them insisted that I sign an NDA before he would pitch me. As esr suggests, it was pretty easy to decide that working with him would be more trouble than it could possibly be worth.
> So long as there is an effective independent judiciary, the law of the land is what protects the citizens from the arbitrary autocracy of the State.
Umm… that “independent” judiciary consists of employees of the state, and that “law” of the land is no more than the decrees of certain officers of the state.
If you want an idea of what an effective independent judiciary looks like, take a look at systems of customary law (http://mises.org/daily/2542#1, http://home.arcor.de/danneskjoeld/X/Som/, http://mises.org/journals/jls/1_2/1_2_1.pdf, http://www.amazon.com/Enterprise-Law-Justice-Without-State/dp/0936488301) and consider the evolution of the Law Merchant and Admiralty Law outside of the direction of any state.
> Ummâ€¦ that â€œindependentâ€ judiciary consists of employees of the state, and that â€œlawâ€ of the land is no more than the decrees of certain officers of the state.
It’s not important that they’re “employees” of the State (as such) so long as they are protected from arbitrary removal or transfer from their positions by politicians in power.
It’s worked reasonably well in India so far (at least so far as the higher judiciary is concerned). I agree that the relationship is a tough one to balance, but it can work well in any country.
As far as the original topic is concerned, I will say again, I do not believe in the moral force of “agreements of honour” and I don’t believe that modern businessmen will respect that when it comes to the bottom line.
Bear in mind that generally if any part of an agreement, especially an NDA or NCA is unreasonable, the court will declare the entire document null and void.
Er, wrong, again. Unreasonable contracts are enforced all the time. Unconscionable contracts may be held void in whole or in part — and any competently-written NDA or NCA will contain a severability clause — but there’s a rather enormous difference between an unreasonable agreement and an unconscionable one.
And this notion that NDAs and NCAs routinely contain provisions that violate state labor laws is more nonsense. If even a significant minority of these agreements were written so incompetently as to be unenforceable under state labor laws we’d see an ongoing parade of malpractice claims and state bar ethics complaints against corporate attorneys. We don’t. Instead we see these agreements generally being upheld to the extent that they’re litigated.
You might be a lawyer, but itâ€™s obvious your area of specialty isnâ€™t labor law.
It’s equally obvious, notwithstanding your derision of “mere law school graduates”, that you know a lot less about the law than you think you do — a regrettably common affliction among techies, unfortunately.
Pfffft. No. First off, do you think the vast majority of NDAs and NCAs are written by attorneys? That may be true in the big companies, but small businesses (which still run the American economy, no matter how much corporatists try to gaslight them out of existence) usually just buy those pre-made legal templates. Ever read any of those? They’re hilarious.
Secondly, the bigger companies may have an attorney write them, but corporate attorneys almost never write them. You’re a lawyer, you ought to know that. They’re written by wet-behind-the-ears interns and signed off on with barely a glance by the legal staff. That’s if the NDA or NCA was even written by legal; often managers try to write this stuff themselves and then have legal “give it a look-over.” Heh. Funny.
I find your naivetÃ© to be refreshing.
Thanks esr, that really clears up a lot for me. I feel much the same way, about the whole mess, but until now I wasn’t really sure of a _good_ way to deal with it. Your words of wisdom are, as always, much appreciated. :-)
I just went through an NDA process again. I was beta testing for ATI’s 4 port display cards. They wanted and NDA and I felt that it was a very reasonable request. However, I really didn’t like committing my company to an open ended liability, so I did some negotiation too.
I pointed out that it would be irresponsible of me to bind my company forever to an agreement of liability. ATI insisted that any liability would expire with the launch of the card. Bearing SCO in mind — “Contracts are what you use against people you have a business relationship with” I told them I’d have to have an expiration date for the entire agreement.
After a few days, their legal department decided it was OK and it was written in. Everybody happy. And yes, it has expired, and I’m now encouraged to speak openly and publicly as often as possible. So that’s one where it worked out well.
My company is hit at least weekly by people who peg the “something fishy” meters wanting NDA’s saying “I have a fantastic production idea, but require an NDA.” In these, I always refuse. A few things I point out:
1: If the idea is so great, somebody else has already thought of it.
2: If we are going to work together, I have every incentive to keep the secrets, since they will soon be my trade secrets too.
3: If we aren’t going to work together, I have every incentive to keep mum, since it will be helping my competition, who want to eat me.
4: I am unwilling to bet exposure to tens of thousands in legal fees just to hear about another new idea.
5: Microsoft never signs NDA’s, and I’m trying to emulate them.
Incredibly enough, the rote argument above always works, even though I don’t really believe that about MS. And #3 is a bald-faced lie, since we help competitors all the time, right down to you-tubing our trade secrets and writing books. Hell, if you don’t want to buy the (eye-bleedingly) expensive book, we have a free .pdf download made directly from the adobe files that went to the printer. Putting the book online is a direct result of CatB, by the way.
Anyway, NDA’s do have a place, but it’s a very, very small one.
clarification: we only give away our own secrets, never anybody else’s.
The #3 bald faced lie is that we actually have incentives to help our competition. An honest and generous reputation in our cut-throat, backstabbing industry brings in business. We also have a reputation as the very best craftsmen, and we supply lots of products to our competition. Giving away secrets confirms an expert reputation, and we’re far enough ahead of everybody else that they seem to have given up and just use us as a supplier.
The point: giving away your own trade secrets can be very valuable. Giving away others’ secrets just makes enemies, which is anti-valuable.
I’ve done a lot of free lance work. My realm is more “things” related. Most comments here seem to be from people who work with software or related items.
I agree with most opinions about NDAs being a bunch of corporate CYA. Unfortunately in the realm of things we have to use them to satisfy the patent process. It becomes very important to prove that you were keeping things out of the public domain when dealing with suppliers during development. This is so you can file right before you launch publicly in order to get the longest possible protection period.
Personally I think the whole intellectual property system is broken, and foolish, but it is a part of doing business in my world. Most companies simply will not work with you otherwise. They want to document dates and when and what you worked on, both to ensure accurate assignment of rights and to limit possible infringement claims. I do always require a reasonable expiration date. I have also turned away business when dealing with a “clever” lawyer on the other end. That said, IP has become more of a hassle than a help.
As an HR professional there is a built in expectation that the sensitive information/material I come across be kept confidential. I can appreciate what you are saying but I work in the tech world. Our company builds software/hardware for some pretty big name clients. If they are about to release a product in an attempt to knock down one of our competitors, we can’t have a contractor or employee shooting off their mouth about it. I think it’s great that you are apparently beyond reproach with high morals and ethics etc. However, from my 12 years experience in HR the average person does just that. They want to prove they are in the know to impress their friends, family etc. or they are just a gossip. If someone refuses to sign our NDA they are not hired or kept on. Plain and simple. People are going to talk you can’t stop that. However, if someone here talks and the client finds out about it, we can be sued. So we need some type of recourse i.e. we have proof that you are the leak you are fired so you can’t put the company at risk again. My job is to protect my company. I’m not going to risk my client’s company because Joe Blow was trying to impress some chick and get his groove on at the local bar.
I recently interviewed for a startup and was sent a “MNDA” along with an 20 slide powerpoint pdf before the first meeting. During the meeting the “CEO” of this high tech startup (wireless antennas), went thru an executive presentation that was roughly 75 powerpoint slides for over 2 hours. fortunately he didn’t have any copies of the MNDA on hand to get me to sign one then and there, I promised I would sign one and send a scanned copy via email during the next few days.
I hadn’t done my personal research into this startup or the CEO, but when I did, I discovered that he made several misrepresentations: he didn’t own the patents he claimed he owned, and he lost the lawsuits he claimed he won. Later I discovered that the office address is an old one, over a year old, and that his new “office address” where he’s getting his mail forwarded is a private home belonging to his girlfriend.
This MNDA/NDA was over five pages long, it seems to cover everything under the sun regarding anything related to the name of the CEO or anything he disclosed during our first and only meeting and the executive presentation.
It appears this CEO and his startup are not legitimate, he was originally fired from the first company that owns one of the patents many years ago and has been raising funding for a company that only exists on the internet. This “CEO” seems to be using this NDA as a way of silencing anyone that realizes the information he has disclosed during the executive presentation is fraudulent.
NDA’s are a dime a dozen, they’re commonly used all the time, but this person is using them as his way of keeping anyone silent about his fraudulent business practices.
I refused to sign this NDA, and I tore up the NDA before sending the “CEO” the signed copy. This “CEO” has continued to harass me via email and ph calls to demand that I sign his MNDA because I had originally promised I would in email. This “CEO” can’t afford to hire a lawyer, but he might end up going to legal aid to get some free legal help in filing a lawsuit against me for “tort” and defamation.
This a total nightmare, interviewing for a company, initially agreeing to doing some free work in revamping his exec presentation powerpoint slides, and then when I look into the patents and his company, I discover he’s misrepresenting himself, his startup, and it’s all a fraud and apparently he’s taken money from many investors over the years and got them to stay quiet because they signed his MNDA. If you email me, I’m happy to send you the horrible NDA he wants me to still sign. I feel like if I sign it, I will be an accomplice and held liable and be unable to go public with any information about this misrepresentation.
I’ve never seen/experienced anything like this complete abuse of NDA’s, do you care to comment/reply? Thank you
I’ve had to seek out legal advice and get an attorney to represent me to stop his psychopath from harassing me, but now he’s harassing my attorney and claiming I’m defaming him because I spoke with the person who referred me to him/his startup to let her know this person isn’t who he claims he and his company is.
>I’ve never seen/experienced anything like this complete abuse of NDA’s, do you care to comment/reply?
Holy shit. That is the worst abuse I’ve ever heard of.
How about this: next time the guy harasses you, threaten the full glare of publicity if he doesn’t stop. As in, you’ll put his NDA and your whole history with him, and his prior record, on the web. And go to the press.
Thanks for the quick reply.
it gets worse, I also received a threatening voicemail from someone with a florida area code from a nutcase the day after I sent an email stating I was ending any relationship with this startup–I had never signed any kind of formal employment/hire offer. I live in the greater SF Bay Area so I never thought twice about signing a NDA because it’s so readily used by startups but never had any clue it would be used to possibly make someone an accomplice to investment misrepresentation and also legally bind them to silence.
He’s been barraging with me rambling long winded emails about how I had promised him in previous emails to sign and now was reneging. I’m about ready to go to the police and report him for harassment but my attorney says to hold off and only do something if he files a lawsuit against–his latest is he’s going to sue me for tort and defamation.
He owes everyone, he names his “excellent attorneys” in the executive presentation slideshow that helped him launch a lawsuit which he lost and he has never paid his attorneys. He even tried to make it out that his former business partner was to blame for the breakin of his attorneys’ office in which only his files were removed. It sounds like he’s the culprit.
He’s a real conman, he’s been conning people for decades apparently, taking credit/making claims for technology he doesn’t own, getting people to do stuff for him without realizing he’s a super psychopath.
WTF! I was just trying to find a job with a startup that had a bright future, not smoke and mirrors to raise money that goes to fund the CEO’s life style (style of lies and deception).
Per my attorney, at this time I’m supposed to drop it so I can’t post his NDA and go public. Apparently he originally raised close to 2 million dollars for funding development with his original company, but none of that 2 million ever made it to the company which was raised in the UK, and worse he took all the paperwork (the books) when he left the company and came back to the US. Even though he was fired, he had the gall to go after his former company/business partner and sue them, which he then used the lawsuit to backup his story about his business partner being a crook. Look what happens when a thief doesn’t get prosecuted, he keeps on stealing and because he got away with it, is now blaming his former employer. I can’t believe I stepped into this pit of sh*t on the basis of a mutual friend who recommended him and his startup to me–that now former friend (she’s got PhD too) is a total idiot–she refuses to accept that this “good friend of hers” could be a crook and a liar and his business a complete sham.
It’s investment fraud, pure and simple, and this “CEO” has the nerve to bully me into signing this damn NDA in order to shut me up about the misinformation, since there is nothing proprietary at all in the information he provided me. I would be happy to send you this horrible nda, I’ve been told by one person that it’s a document this “CEO” uses to legally handcuff investors so they can’t say anything about the misinformation given to them.
I will never, ever sign another NDA if I can ever help it.
By the way, perhaps some of you might point at something out of it?
Instead to get fully paid, I was asked to sign a NDA with one year ahead of the actual signature of the day, is this mean something like a period of time of silence or simply a mistake from a salesman? I was expecting to sign with the date of the day, but noticed i have to sign a document at 2015 date…????
Hi – great post.
How about clients insisting on some obscure state for the applicable state law?
I’m currently negotiating an agreement in which the client is stubbornly insisting that applicable law be their (obscure) state – claiming it is a “requirement” of their investor.
I’d like to enforce a blanket policy of having applicable law be a choice of either my home state (in the large 4) or Delaware (as a compromise) – should keep legal risks and any applicable lawyer fees more manageable. Not sure what to do – don’t want to lose this client, but I feel they are being somewhat childish and deceptive (the investor restriction sounds like b.s. – as I know for a fact they are working with foreign contractors (ie: india, pakistan, etc) to build out key parts of their product).
What would be a tactic for dealing with this client?
Until recently I was working for a company as IT lead. Although I had not NDA agreement with the company, after my departure they demanded to have access to my personal computer which I refused. A week later I received a letter from their lawyer indicating if I do not comply within 72 hours I will be sued. Without an NDA agreement am legally liable.