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I have quit a company, where I have worked in for more than two years, three months ago to join a startup where I am the lead developer. Contractually speaking I am bound by a five years non-disclosure agreement, and a one year of non-denigration.

Due to the work of my team, we will have some massive business opportunities that we would not be able to tackle (even with an hyper growth). Consequently the chairman of my current company wants to create a partnership with my former company, which has a "remote" affinity with these opportunities.

The fact is that I know many things regarding my old company structure and how partnerships are usually handled (some of the were even disclosed in newspapers), and it can be a huge risk for us.

I want to warn my chairman, without risking lawsuits. Is there a way to do that?

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  • Are the persons in your current company who make the decision aware of your former employment and may expect you to give any comment about it?
    – max630
    Commented Nov 8, 2020 at 11:25
  • I honestly do not know. we are a 6 people startup and the chairman claims to trust us, I think warn him with potential pitfalls would be at least appreciated. Moreover he asked me about some details about a recent merger.
    – user102339
    Commented Nov 8, 2020 at 15:22

4 Answers 4

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Generally, the clauses of Non-disclosure agreements state -for obvious reasons- that they don't apply to information that was already known by the subject (legally) prior to the relationship under NDA, that are public or released by the other party.

Thus, your employment NDA may not allow you to tell that your employer is developing a Covid-19 vaccine, but as soon as your company made a press release telling that they are very near to have a working vaccine, you might -depending on the exact NDA terms- be free (and perhaps even expected to) spread that information.

You are in a situation where you have some internal knowledge, protected by NDA, that would be useful for your current company but you cannot divulge. At the same time, you have an obligation for the well-running of your current employer. Luckily, these issues were published in newspapers, so you don't need to break your NDA to warn your employer.

Thus, I would recommend you to find multiple pieces of news of these things that happened (you have an advantage here in that you know what to look for), and then go and tell your chairman.

I know you are considering to partner with XYZ Corp. As you know, I used to work for XYZ Corp before. Although I am bound by an NDA for the time I was there, I think you will find the following pieces of news regarding past XYZ partnerships relevant. I don't think we should seek a partnership with them.

For an answer suited to your particular circumstances (the exact NDA you signed, what you might want to tell), you should consult a lawyer. Show them the NDA, tell them the "secret" your company would need to know (yes, I think you could tell that to your lawyer -which is itself bound to confidentiality-, he will tell you if that's the case in your jurisdiction), the published information you found, and discuss with him up to which point you can tell your current employer and how to word the message you might give.

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    Please don't follow that answer, get an opinion for a lawyer instead. Doing anything else can expose you for a world of hurt as ex employee linking to independent articles while winking is definitely not something that will go down fine.
    – Aida Paul
    Commented Nov 8, 2020 at 12:36
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    @JoeStrazzere I have softened that part to emphasize it's conditional to the exact terms of the NDA. It was already based on the assumption of previous paragraph, but made it explicit there, too.
    – Ángel
    Commented Nov 8, 2020 at 23:01
  • Giving the CEO links to the newspaper articles is just handing out public info...
    – Solar Mike
    Commented Nov 9, 2020 at 6:34
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I want to warn my chairman, without risking lawsuits. Is there a way to do that?

Have your lawyer review your NDA carefully and give you advice regarding what you should and should not say. Then follow that advice exactly.

There's always a risk of a lawsuit no matter what you do. Only a lawyer can advise on how you can minimize that risk.

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  • OP can recluse himself from the decision making as an alternative of not needing to lawyer up, +1 still!
    – Aida Paul
    Commented Nov 8, 2020 at 12:39
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    You are 100% correct on both counts, and the fact that in English one letter changes entire meaning of a word still continues to best hah!
    – Aida Paul
    Commented Nov 8, 2020 at 17:44
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Obviously point to the publicly available information in newspapers.

In addition, you can say that you wouldn't recommend working together with this company, and when you are asked why, you say that you are under an NDA.

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  • What OP needs is a lawyer, we don't know the wording of the NDA, and more importantly the non-denigration agreement, and saying that you won't recommend a company (one you worked at) may very well be in a breach.
    – Aida Paul
    Commented Nov 8, 2020 at 12:39
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Your NDA was probably created just for cases like this, and if you can get away with conveying your message it would be their oversight. I would be very careful in this case. You could check it with lawyer how much you can say but the safest but yet ethical option would be to state that you have signed things and then avoid providing any comment, either positive or negative, about your former employer. You can tell it to whoever asks you, or to your immediate manager otherwise, just to avoid "why didn't you tell" issues later.

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