And then there`s Section 162 (q) of the 2017 Tax Act, which eliminates a tax deduction for sexual harassment and all related legal fees when the payment is subject to a confidentiality agreement. When an employer requires the alleged victim of sexual harassment or abuse to keep the transaction (and probably the underlying debt) confidential, the amount of the payment and related legal fees are not deductible. Sexual harassment or abuse and the resulting legal fees remain tax deductible if they are not covered by a confidentiality agreement. If the person or company you are suing has acted with will or ill will or non-compliance with the likely violation (defined as “intentional and malicious”), the courts may impose punitive damages in many states. These are damages awarded to you to punish the wrongdoer and set an example for other alleged business secret thieves. It is normal to say that each party has its own intellectual property and that nothing is transferred under the NDA. But if you go beyond that to assign existing intellectual property or to prescribe common ownership of newly created PIs, etc., you are talking about a broader form of agreement. For example, a test agreement, a service agreement, or a broader commercial or research and development partnership. For example, if you want to patent an invention, disclosing confidential information can ruin your chances. An NOA should be limited to the disclosure of confidential information. That`s what makes it a confidentiality agreement.
Any document that claims to be an “NDA” but contains essential intellectual property obligations (z.B that everything discussed is owned together) should be a red flag. Liquidized damage clauses are attractive on appeal because they appear linear and comfortable (no need for litigation, no lengthy resolution process, etc.). Historically, however, they have done more damage than profits and have often sparked heated debates about the differentability of predetermined damages from the alleged breach. Of course, some situations may require a liquidation clause in your NOA, and a lawyer can help make that decision. That is certainly correct, but it is incredibly difficult for NDAs to determine the expected actual damage caused by the disclosure of information protected by the NDA. For example, if sensitive information is illegally disseminated by the receiving party and damages the reputation of the revealing party, how can the courts calculate the damage to their reputation? Often, no amount of compensation can negate the damages caused by the disclosure of sensitive information, but it is up to the courts to determine a reasonable amount in dollars.