Immediate Response Protocol
Stop the Bleeding
Demand immediate cessation of disclosure and return of materials
Preserve Evidence
Document everything before the breaching party can destroy records
Legal Review
Contact litigation counsel to assess injunctive relief options
Damage Control
Assess third-party exposure and notification requirements
Response Timeline
Critical actions in the hours and days following breach discovery
Immediate Containment
Focus on stopping ongoing disclosure and preserving evidence before it disappears.
- Send immediate cease-and-desist via email and overnight courier
- Revoke data room access and change all relevant passwords
- Screenshot and save all accessible communications about the breach
- Issue litigation hold to preserve internal documents
Legal Assessment
Engage litigation counsel and assess the strength of your enforcement options.
- Provide NDA and breach evidence to litigation counsel
- Assess viability of temporary restraining order (TRO)
- Identify jurisdiction and applicable law
- Estimate damages and prepare preliminary damage theory
Formal Legal Action
If breach is severe and ongoing, move quickly to obtain court intervention.
- File TRO motion if disclosure is ongoing or imminent
- Send formal breach notice via counsel with specific demands
- Demand return/destruction certification under penalty of perjury
- Notify third parties who may have received confidential information
Full Assessment
Complete damage assessment and decide on long-term enforcement strategy.
- Conduct forensic analysis of breach scope
- Quantify actual and potential damages
- Evaluate settlement vs. litigation economics
- Consider SEC/regulatory reporting if public company involved
Enforcement & Resolution
Pursue appropriate remedies based on breach severity and business relationship.
- Negotiate settlement with confidentiality provisions
- Pursue preliminary injunction if TRO granted
- Commence discovery in litigation
- Consider mediation or arbitration if available under NDA
Legal Remedies Available
Understanding your enforcement options and when to use each
Injunctive Relief
Court orders prohibiting further disclosure and requiring return of confidential information. Most critical remedy for ongoing breaches.
Requirements to Obtain
- Likelihood of success on breach claim
- Irreparable harm without injunction
- Balance of hardships favors movant
- Public interest not disserved
Monetary Damages
Compensation for actual harm caused by the breach, including lost profits, diminished value, and costs incurred to mitigate damage.
Types of Damages
- Direct damages (lost deals, customers)
- Consequential damages (if not disclaimed)
- Disgorgement of breacher's profits
- Reasonable royalty for misuse
Specific Performance
Court-ordered compliance with NDA terms, including return of materials, destruction certification, and ongoing confidentiality.
When Available
- Monetary damages inadequate
- Terms are clear and definite
- Enforcement is practical
- No undue hardship on defendant
Contractual Remedies
Remedies specified in the NDA itself, which may include liquidated damages, fee-shifting, or enhanced enforcement provisions.
Common NDA Provisions
- Liquidated damages clause
- Attorney fee recovery
- Consent to jurisdiction
- Acknowledgment of irreparable harm
Critical Evidence to Preserve
Communications
All emails, texts, and messages discussing confidential information or the breach. Include metadata and headers.
Data Room Logs
Access logs, download records, and user activity from virtual data rooms. Export before access is terminated.
Timeline Records
Meeting notes, calendar entries, and any documents establishing when information was shared and with whom.
Public Disclosures
Press articles, SEC filings, analyst reports, or social media posts containing leaked information.
Witness Statements
Written statements from anyone who observed the breach or received leaked information.
Damage Documentation
Financial records, customer communications, and expert analyses supporting your damage claims.
Common M&A NDA Breach Types
Understanding breach severity helps determine appropriate response
Public Disclosure
Confidential deal information leaked to media, analysts, or public filings. Most severe breach type requiring immediate TRO.
Critical SeverityCompetitor Disclosure
Confidential information shared with the target's competitors, enabling competitive harm or deal interference.
Critical SeverityUnauthorized Third Party
Information shared beyond permitted recipients without required confidentiality agreements in place.
High SeverityMisuse for Trading
Use of MNPI (material non-public information) for securities trading. May trigger SEC involvement and criminal liability.
Critical SeverityImproper Use
Using confidential information for purposes beyond evaluating the transaction, such as competitive intelligence gathering.
High SeverityFailure to Return
Retaining confidential materials after deal termination despite return/destruction obligations.
Medium SeverityEnforcement Decision Framework
Is disclosure ongoing?
Can the breaching party continue to share confidential information?
YES - Immediate Action
Seek TRO/emergency injunction within 24-48 hours. Time is critical.
NO - Assess Damage
Focus on damage quantification and evidence preservation.
Is the deal still viable?
Do you want to continue the M&A transaction despite the breach?
YES - Measured Response
Balance enforcement with relationship preservation. Demand formal cure.
NO - Full Enforcement
Pursue maximum available remedies without deal preservation concerns.
Can damages be quantified?
Is there a clear monetary value to the harm caused?
YES - Damages Focus
Prepare detailed damage model. Consider settlement negotiations.
NO - Equitable Focus
Emphasize injunctive relief. Irreparable harm argument stronger.
Related Resources
Additional M&A NDA guidance and tools