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ARTICLE · 26 JUNE 2024

Shopping For A "Confidential" Definition

Sterlington PLLC
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Definitions of "confidential" are central to non-disclosure agreements (NDAs). Management and a diligent review process for NDAs...

United StatesIntellectual Property
Mari Bonthuis
Mari Bonthuis
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Definitions of “confidential” are central to non-disclosure agreements (NDAs).  Management and a diligent review process for NDAs can help companies avoid litigation surprises found in these definitions. Consider the following failed merger.[1]

In the early 2000s, QVC dominated the U.K. home shopping market. IAC/InterActive Corp., the parent of QVC's main competitor, the Home Shopping Network, was eager to expand its presence there. That's when “sit-up”, a popular U.K. auction-style home shopping channel, approached IAC with a potential deal.

To proceed with the deal, sit-up and IAC executed an NDA that defined the “evaluation materials” sit-up agreed to provide to IAC as:

…all information, whether furnished before or after the date of [the NDA] and regardless of the manner in which it is furnished, together with all analyses, compilations, studies or other documents or records prepared by [IAC] and its Representatives to the extent such analyses,

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