Regulatory Disclosure - OneNDA Provision
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OneNDA Owner’s Manual™
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Overview
The kinds of people you’ll want to allow access to the confidential information under a confidentiality agreement.
Summary
Who’s in
The anally-retentive amongst you — what? Oh, come on guys you know you are — anyway, you may like to define those individuals to whom one may pass Confidential Information to carry out the Purpose as “Necessary Persons” or something equally tedious.
Those people may be:
Professional advisers: Not usually controversial because they are by nature bound by professional protocol and fiduciary duties to respect confidentiality and may even buy you legal privilege for whatever that is worth these days. (There is some annoying thing where people try to carve out those subject to professional duties of confidentiality from the principal’s obligation to ensure they keep schtum. This is dumb, and should be stamped out.)
Employees: The corporate veil may be impermeable but you do need someone with a head, any kind of head, and a beating heart to read and deal with the confidential information on the limited company’s behalf — but more fearful types may try to restrict which of your employees are in the gang (see below).
Regulators: compulsory disclosure to competent regulatory bodies, courts, and so on. Marginally more controversial is the obligation to disclose at the polite but non-binding request of regulators. In any case, don’t agree to notify your counterparty of any regulatory requests. They may hotly insist they need to right to challenge the disclosure or take out an injunction or something but — well, yeah. Sure. For a better reason, see below.
Who’s out
Employees who don’t have a need to know: Especially those employed in front office trading capacities. The agent lending market has developed sophisticated masking strategies so that borrower’s books and records don’t carry the identities of their principals. If you are in the business of bringing in new clients don’t be alarmed at requests to restrict disclosure to KYC, credit, compliance and onboarding teams.
Affiliates, qua affiliates
It is a kind of obsession amongst a certain kind of legal eagle — usually, the same sort that will hotly insist on a counterparts clause — that one specify in elaborate detail which, or which sorts of, affiliate may have possession of the discloser’s innermost secrets.
The JC has never really understood this. A degree of control over another legal entity is surely an arbitrary marker which has nothing at all to do with one’s “purpose”, which one will have spent some time and intellectual energy explaining. Let that be your guide. For why should it make a difference that the person to whom you want to share the discloser’s good oil happens to be employed by a >51% related, or co-controlled, or parent or child — go on, shoot me — company?
If you sensibly contain the “purpose” and get your “permitted disclosees” right — namely those with a legitimate need-to-know the confidential information and who accept it with an equivalent degree of confidence, and for whom the contracting principle remains responsible, should they violate that confidence — then it really doesn’t matter if they are affiliates or not.