the Zealous

Among the nearly infinite variety of legal agreements in use today, the non-disclosure agreement for general bilateral business discussions is by far the most ubiquitous. If measured only by the frequency of its use and the significance of its impact, a company’s NDA template is arguably its most important. The $200 million verdict against Oculus for breach of a rather simple NDA speaks volumes as to how critical such an agreement can be.

Every company has its own unique general use NDA template; paradoxically, many companies sign the opposite party’s template more often than not. The party larger in size, reputation, market cap, or perceived importance usually wins the battle of the NDA form. This NDA ritual takes place hundreds of times a day all over the world.

When I was a young law firm associate back in the day, I was second chair on a complex, lucrative (for our client) and acrimonious technology/patent license negotiation. We were holed up in a conference room with buyer's counsel, in the dead of a typical brutal Colorado winter, groping our way towards final agreement. The legal negotiations were excruciating. We were the smaller party going up against a huge computer manufacturer, and the buyer's counsel, on the junior side of the experience scale, simply kept repeating the same mantra that corporate policy forbids any flexibility, even on what clearly should be uncontentious points.

An exposition on the use and abuse of dictionaries in recent US Supreme Court jurisprudence, by Mark A. Lemley, Chief Justice Webster, 106 Iowa L. Rev. 299 (2020):

The Supreme Court has a love affair with the dictionary. Half of its decisions in the 2018 Term cited a dictionary, often as the primary or exclusive means of defining a statutory term. The Court regularly upends decades of precedent and ignores congressional intent (and sometimes common sense) in favor of a chosen dictionary definition. The Solicitor General may long have been the “tenth Justice,” but in the twenty-first century the Chief Justice of the Supreme Court may as well be, not John Roberts, but Noah Webster.

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