To determine the enforceability of Confidentiality Agreements, Franchising companies must be able to answer three questions affirmatively.
First, does your confidentiality agreement contain information which is outside the public domain or does it contain information compiled or combined in a unique way as the result of your business efforts? In the vast majority of business format franchises, information is one of, if not the most valuable asset of a franchise system and it is the compilation and use of that information which forms the foundation of the franchise system. This is what distinguishes your franchise from any other business.
The second area that must be examined is whether the subject matter deemed to be confidential derives value from its secrecy. If the actual loss caused by the violation of confidentiality provisions results in no damage to the party seeking protection, how can liability be imposed on a wrongdoer? It does not matter whether your entire franchise system uses special recipes or, for that matter, anything your franchise company may deem to be confidential in nature, you must be prepared to show it has value and how your company has been damaged.
The final question of our tripartite equation, is probably the most important, did the party seeking protection take reasonable precautions to maintain the secrecy of the material claimed to be confidential? It is not enough for your franchise company to argue that the parties to whom knowledge of the alleged confidential material is imparted to – should have known better. The burden is on your franchise company to show that reasonable precaution to prevent unauthorized disclosure is in place. The determination of whether “reasonable precaution” was taken ultimately rests in the discretion of the trial court. As a result, you must demonstrate that not only is the information deemed to be of substantial value to your franchise system but that your company took the necessary precautions to preserve the integrity of your information, even when that information may have been voluntarily provided to third parties. So how can a Franchisor show its protection of confidential information? One way that trial courts recognize is to show that there is a process in place to protect the information through use of third party confidentiality agreements. This contractual protection is an affirmative step by your company to set out a third party’s acknowledgement that the information or material being divulged is done so under limited parameters and further, it sets out the consequences for misappropriation. Additionally, contractual protections should be supplemental by a proactive strategy to monitor franchisee compliance.
Beyond securing secrecy for your company, there is an indirect benefit of a psychological impact on your franchise system by demonstrating your company’s regard for the confidential information and its commercial sensitivity.
Your confidential information is a valuable asset in your franchise tool box for the success of the franchise system. By taking steps to proactively protect and prevent trade secret leaks, you will create positive dollars to your company’s bottom line.