Confidentiality Agreements Between Competitors
This article examines the impact of settlement agreements, which usually contain non-cancellation provisions, under U.S. antitrust law. Normally, prior to the commencement of due diligence, the parties sign a confidentiality or confidentiality agreement (« NDA ») prohibiting the unauthorized use and disclosure of confidential information exchanged to third parties. Although this NDA may be sufficient for the confidentiality of such information, the mere exchange of such information (in so far as it is CSI) may lead to an infringement of competition law where the parties can be considered as competitors or potential competitors. In short, DDAs are not enough to ensure compliance with the rules. M&A between rivals is natural and inevitable. And while there are grim examples of discussions going wrong, the recording shows that it is entirely possible for both sides to negotiate and move towards a Union without compromising the future prosperity of both sides. A confidentiality agreement is also called a confidentiality agreement and limits staff or independent contractors to disclose sensitive information they receive in the course of their employment. Confidentiality agreements help companies not to fall into the hands of their competitors in order to use information essential for their market position and competitive advantage.
In the case of COMPANIES, it is clear that joint venture structures should not be used as a vehicle above which the shares of the shares in CSI are located. As regards the flow of information between a parent undertaking and the joint venture, admissibility depends on the context, including whether the parent companies are able to compete or compete with the joint venture and whether the joint venture has been notified to the Commission under Community merger control rules1 and, if so, whether any information flows fell within the scope of the European Commission`s authorisation decision. Again, security measures may need to be taken. Where such non-recruitment agreements are concluded as part of a potential merger or acquisition and are reasonably ancillary to the transaction (as opposed to mere cover for the allocation of work equipment or the fixing of workers` wages), they should not in themselves be regarded as « naked » unlawful restrictions of competition. On the other hand, in the strategic context of buyers, competition for workers may be weakened, as two former employers consolidate in the market into one that therefore has greater market power. In this context, as in any investigation of the rule of reason, lawyers should consider the potential effects of non-abasolation agreements.