Corporate & Securities Law

?Confidentiality? or ?Nondisclosure??

By Ken Adams

Here’s a gripping issue: What should one call a contract requiring that certain information be kept confidential?confidentiality agreement or nondisclosure agreement?

What nondisclosure agreement has going for it is the convenient and universally recognized initialism NDA. By contrast, I’ve rarely seen CA used for confidentiality agreement.

Nevertheless, I prefer confidentiality agreement, because nondisclosure agreement expresses the concept in the negative. When given the choice, I prefer using the positive.

For what it’s worth, here are some Edgar statistics: of all contracts filed as exhibit 10 “material contracts” in the past month, 421 use confidentiality agreement and 132 use either nondisclosure agreement (46) or non-disclosure agreement (86).

By the way, if you’re going to use nondisclosure agreement, lose the hyphen: I agree with Garner’s Modern American Usage that “With few exceptions, the prefix non- does not take a hyphen unless it is attached to a proper noun.”

Full post as published by AdamsDrafting on September 10, 2009 (boomark / email).