Non-compete buried within NDA

As a consultant in optical design, I see numerous contracts every year.  There are now terms of non-compete buried within simply NDAs which are required for initial discussions.  Such tactics seek a commitment without consideration.  I reject such NDAs by requesting compensation for my commitment during a term of service.  Historically, my rejection of commitment without consideration led to reasonable terms of engagement.

However this changed dramatically in 2006.  Massachusetts companies are now insisting upon non-compete language in “our standard non-disclosure agreement.”  Since 2006, my revenue from Massachusetts’s companies has fallen significantly.  In 2008, I had more revenue from out-of-state clients than in-state clients.   I attribute this trend to egregious NDAs which I cannot sign in a profitable manner.

As an expert with over 20 years of experience, I can provide lasting value through short-term service to multiple Massachusetts companies.  My designs are claimed by patents.  There is no need to claim the engineer.  Burying non-compete language within a non-disclosure agreement is certainly detrimental to both me and the state.

Confinement of non-compete language to a specific document merits consideration.  It would eliminate the possibility of hiding the non-compete language within an NDA.  I have witnessed my colleagues sign such documents without even reading the NDA, because it was provided at initial discussion for immediate endorsement without opportunity for scrutiny.  A document with title such as “non-compete agreement” would surely receive less enthusiasm for immediate endorsement.

The State of Massachusetts has enormous bills to pay, both now and in the future.  Pushing an expert like me out of state is not “in concerto” with the public good.

One reply on “Non-compete buried within NDA”

  1. Thanks for reporting this experience on this site. It is helpful as we shape non-compete legislation. Perhaps we can craft a rule in the procedural section that speaks to buried non-compete language. Certainly, this is a fairness and disclosure issue. I appreciate your bringing it to our attention and documenting it.

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