Following up on my post on November 27, 2021, regarding mediating Non Disclosure Agreements (NDAs), two scholars have just written an article for mediate.com on the legal enforceability of NDAs. They cite only a few cases, but conclude that courts are signaling “a willingness to rein in the most egregious abuses” of NDAs where they are overly broad. Of particular interest is a recent Federal case from the 1^st Circuit, TLS Mgmt. & Mktg. Servs., LLC v. Rodriguez-Toledo, 2020 WL 4187246 (1st Cir. July 21, 2020), where the appellate court refused to enforce the NDA because it was overly broad. In my November post, I lamented the dearth of cases addressing this issue, so I appreciate this article by Colin Rule and Brittany Nunn.

It seems like the better remedy for overly-broad NDAs is for courts to refuse to enforce them, rather than for legislatures to outlaw whole categories of NDAs  (as has happened in several states, as I note in my November post), or for mediators to promise not to facilitate an agreement that contains an NDA (as Professor Julie Macfarlane advocates). Another popular remedy is for organizations to sign a pledge not to use them, as with universities in the UK and Christian organizations in the U.S. At any rate, we will surely be hearing more about NDAs, and mediators’ role in facilitating agreements containing them, in coming months.