If a third party asks why an NDA is needed, ask if it is a red flag per se. You don`t see confidentiality as a major concern or a priority, you may not understand the importance of strict privacy practices, or try to disclose confidential information without a NOA. Another tricky situation in the event of a retrodated confidentiality agreement is the possibility that the recipient party did not inform your confidential information of its confidential obligations prior to the signing of the agreement. Despite the general conviction, the return of documents is not necessarily illegal. In fact, it is allowed for so long that there is a Latin expression, nunc pro tunc, which describes the backdated documents. Protection: The most common reason to enter an NDA is to ensure that there is adequate and mandatory protection before sharing confidential information with another party. If your company has trade secrets, the omission, the confidentiality obligations to the third parties who have access to them, can cost you your protection as a trade secret. Nevertheless, there is a reasonable amount of time to go back to this type of confidentiality agreement and many will agree that it is not unethical or unusual. If this is the case, an agreement with a retroactive date can bring enormous benefits to all parties involved. If the answer to these questions is not clear, there is what I call the “gastrointestinal law” – is that good? If the parties do not feel they are doing the right thing or if there are doubts about the right one, they should add disclosure of the retrodata or review that strategy as a whole.
Before signing a retroactive agreement, consider all environmental circumstances and design your language accordingly. Explain why the retrodation was necessary and avoid anything that may be considered fraudulent in the future. Steven Sholk, director of Gibbons` Newark, New Jersey office and long-time source of valuable leads, sent me the latest eleventh tour opinion in News America Marketing In-Store, LLC v. Emmel (copy pdf here). It contains an interesting lesson for anyone who develops confidentiality agreements. The backdating of the carrying tags was not uncommon, and it was not illegal. However, the re-assatation of legal documents is another matter. The return of legal documents is often permitted. But in other circumstances, it can be fraudulent or illegal. As with violin labels, a backdatedation of legal documents can be legal and even advisable. It is up to the parties to a document to ensure that their intentions are honest and that the return does not harm third parties or violate legal requirements. If in doubt, a strong disclosure of the retrodedation of the document itself may be helpful in alleviating any lingering concerns.
There is no “clear line” tests for legal backdation. But, below, some questions parties to the evaluation of whether their retrodation is legal: A google search on backdating or a retroactive date in legal contracts in the United States, however, a horde of results that prove that business owners and the courts, have examined the subject in detail and decisions in the field continue to shape their use and management. Contract: An existing obligation to a third party may require you to comply with confidentiality obligations with any subcontractor or business partner with whom you must disclose the third party`s confidential information for commercial purposes. If an existing agreement with your subcontractor or business partner does not meet the contractual requirements, a separate NOA may be required. When drafting the retrodated confidentiality agreements, make sure that none of the obligations can be fulfilled or fulfilled after the contract is signed.