Is the non disclosure agreement enforceable in the event of its breach?

I reside in California the other parties : 1. in Australia 2. the other is an American citizen residing in Israel

San Diego, CA -

Attorney Answers (5)

Shaun K. Boss

Shaun K. Boss

Business Attorney - San Diego, CA
Answered

There is insufficient information to respond to you post. What is the subject matter of the non disclosure agreement? Was there consideration given? What is the relationship between the parties?

This answer does not constitue legal advice, nor does it creat an attorney/client relationship. If you are... more
Michael Charles Doland

Michael Charles Doland

Contracts / Agreements Lawyer - Los Angeles, CA
Answered

Every NDA is different; every NDA has real problems of "Proof" (of violation of the NDA and of damages) and problems of enforcement, and all NDAs could be argued to have more psychological than legal value.

The above is general legal and business analysis. It is not "legal advice" but analysis, and different lawyers may... more
Nicholas Basil Spirtos

Nicholas Basil Spirtos

Business Attorney - Montclair, CA
Answered

It is hard to say without knowing a whole lot more.
Take the agreement to a local attorney for a consultation.

Albert Lee Crosner

Albert Lee Crosner

Contracts / Agreements Lawyer - Manhattan Beach, CA
Answered

As has been indicated to you, without seeing the specific non disclosure agreement, it is difficult to answer your specific question. When you entered into the NDA, did you have an attorney put the document together? You should contact a local area contacts/agreement attorney to take a look at the NDA.

The above is general legal and business analysis. It is not intended nor construed to be "legal advice" but rather... more
Answered

An NDA is one form of agreement that has international enforcement difficulties. Unfortunately, most people (even lawyers) believe in a one-size-fits-all approach to creating NDAs, and this isn't recommended. Let's discuss some of your problems.

For starters, you need to know the governing law of the agreement, and where you're trying to enforce the agreement. If this is U.S. law, e.g. California law, it can be difficult to domesticate and enforce an NDA in a foreign jurisdiction on the basis that American contracts do not always comport with the policies of the foreign jurisdiction, and the foreign jurisdictions will not allow the enforcement of a judgment in their jurisdiction. Ideally, you have two separate NDAs under Australian and Israeli law, respectively, to avoid the foreign jurisdiction enforcement issues. Australia and Israel are more in line to favor enforcement of American contracts, but your issues aren't over.

Second, you have a cost-of-enforcement problem. Unless you've included an attorneys' fees provision or followed the European format for an NDA (you have liquidated damages for a violation of the agreement), you're going to face an exorbitant amount of legal fees to obtain a judgment in California, then enter the judgment in the foreign jurisdictions. You'll need a California attorney, an Australian attorney, and an Israeli attorney. I don't know whether Australia or Israel will recognize the award of fees, and more importantly, I don't know what your agreement says (whether you're entitled).

Thirdly, what are your options under the contract for remedies/damages? Cease-and-desist? Actual damages? Consequential damages? Liquidated damages? The easiest-to-obtain remedy to receive in the US for the breach of an NDA is injunctive relief to get the parties to cease further disclosures. Some jurisdictions, e.g. China, don't enforce or entertain injunctive relief. For monetary damages, you'll have to prove you've suffered economic harm, and how do you value actual damages to the breach of an NDA - these are typically low, or consequential damages that are difficult to prove in that you have to show causation between your harm and the breach (and this is if the NDA doesn't limit these types of damages (hopefully not). Liquidated damages are the easiest to define in value, but not always allowed in all jurisdictions in that if there is a breach, there is the requirement to pay a defined sum.

Unless you're prepared to spend a minimum of $50K in legal fees, you're likely not going to see any real adherence to the contract, or any real form of remedy under the NDA. Sorry. You'll need the consult of 3 lawyers to even understand your options, and from my experience, you're already facing insurmountable issues of costs (unless you're a Fortune 500 company) to preclude you from starting the process. You might be limited to making threats, but any Australian or Israel-based person who consults a local attorney would receive advice of the remoteness of and the bona fide lack of risk your demands would proport to be. This is the mistake my American clients make when conducting business overseas.

Good luck.

For legal advice and representation, consult an attorney. This response was provided for informational and... more

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