Confidentiality or nondisclosure agreements (NDAs) are pervasive in the hedge fund industry, but little understood and inadequately analyzed. They are often perceived as adhesion contracts or ministerial impasses to trades or deals. But NDAs can actually affect the economics of deals, the marketability of assets and the flow of material nonpublic information into and out of a management company. Hedge fund managers should think harder than they typically have about NDAs. To help them do so, we are publishing this third installment in a three-part series by William G. Frenkel and Michael Y. Sukhman, both partners at Frenkel Sukhman LLP, on key legal and business considerations in drafting and negotiating confidentiality agreements. This last article in the series covers remedies, damages and liability in connection with NDAs and non-confidentiality provisions typically included in NDAs. The second article in this series discussed: the scope of permitted disclosure of information obtained pursuant to NDAs; the terms of permitted disclosure; the scope and terms of required disclosure; and four important considerations with respect to the return and destruction of documents. See “Key Legal and Business Considerations for Hedge Fund Managers in Drafting and Negotiating Confidentiality Agreements (Part Two of Three)
,” Hedge Fund Law Report, Vol. 5, No. 17 (Apr. 26, 2012). And the first article in this series focused on: the “market” for duration provisions; events that trigger expiration of confidentiality obligations; four key elements of the definition of confidential information; and four typical carve-outs from the definition of confidential information. See “Key Legal and Business Considerations for Hedge Fund Managers in Drafting and Negotiating Confidentiality Agreements (Part One of Three)
,” Hedge Fund Law Report, Vol. 5, No. 15 (Apr. 12, 2012).