NDA Breach Litigation Attorney

When a departing employee, a former partner, or a vendor discloses or uses confidential information, the dispute usually turns on a single contract — the non-disclosure agreement (NDA) — and on how quickly a court will act, timing that often decides whether the harm can be stopped at all. An NDA breach litigation attorney evaluates whether the agreement is enforceable, what confidential information actually moved, whether the breach also amounts to trade-secret misappropriation, and whether the facts support emergency relief. Keyhani LLC litigates breaches of non-disclosure and confidentiality agreements for companies enforcing their rights and for parties defending against a breach claim.

NDA Breach Is First a Contract Claim

A non-disclosure agreement is a contract, and a claim for its breach is governed by ordinary contract principles before any question of secrecy or damages is reached. To recover, the party enforcing the NDA generally must show a valid agreement, its own performance, a breach, and resulting harm — and each element is a place the defense can push, so enforceability is where a well-prepared NDA case begins.

Enforceability starts with contract formation. Courts generally look for mutual assent, consideration, and terms definite enough to be enforced. Where an NDA is signed at the start of employment or a transaction, consideration is usually straightforward. Where a company asks an existing employee to sign a new confidentiality agreement mid-relationship, whether continued employment supplies adequate consideration can vary by state and is a point defendants often test. A clause that never defines what is confidential, or that sweeps in information already public, invites a challenge that the promise is too indefinite or too broad to enforce.

Scope and duration are the next pressure points. A confidentiality obligation that is reasonable in what it protects and how long it lasts is far easier to enforce than one that reads as a perpetual, all-encompassing restraint. Courts are more receptive to an NDA that identifies categories of protected information, carves out what is public or independently developed, and sets a defined term. The party enforcing the agreement should be ready to show the information at issue fits the contract’s own definition; the party defending should test whether the clause is definite, supported, and reasonable.

Choice-of-Law, Forum-Selection, and Arbitration Clauses

Many NDA disputes are shaped by the agreement’s own procedural terms before the merits are argued. A choice-of-law clause designates which state’s contract law the parties intended to govern, though the designation is not self-executing: in most states following the Restatement (Second) approach, a court may decline to apply the chosen law where another state has a materially greater interest in the disputed issue, that other state’s law would govern in the absence of the parties’ choice, and applying the chosen law would contravene that state’s fundamental policy; a forum-selection clause designates the agreed court and, if suit is filed elsewhere, is the basis for moving the case there; an arbitration clause can move the entire dispute out of court. Reading these provisions correctly at the outset sets the map for everything else.

Forum-selection clauses carry real weight. In Atlantic Marine Construction Co. v. United States District Court, 571 U.S. 49 (2013), the Supreme Court held that a valid forum-selection clause pointing to another federal district is enforced through the transfer statute, 28 U.S.C. § 1404(a), and should be “given controlling weight in all but the most exceptional cases,” 571 U.S. at 63. A clause pointing to a state or foreign court is enforced instead through the doctrine of forum non conveniens. The party resisting the agreed forum bears the burden, and the court does not weigh the parties’ private-interest factors at all — they are deemed to weigh entirely in favor of the preselected forum — a reality that often decides in which court an NDA case proceeds.

Arbitration clauses are enforced under their own federal statute. Under the Federal Arbitration Act (FAA), 9 U.S.C. § 2, a written arbitration provision in a contract evidencing a transaction involving commerce is “valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” The FAA’s coverage carries one relevant carve-out: 9 U.S.C. § 1 excludes from the Act “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce,” though courts have read that residual class narrowly to reach transportation workers rather than employees generally engaged in interstate commerce. When an NDA contains an arbitration clause, the threshold question is often whether the dispute belongs in arbitration at all — a question that can be litigated before anyone reaches the alleged breach.

When an NDA Breach Overlaps With Trade-Secret Misappropriation

An NDA breach rarely travels alone. The same conduct that violates a confidentiality promise — for example, copying files before departure, forwarding documents to a personal account, or using a former employer’s confidential material at a competitor — often qualifies as trade-secret misappropriation. Pleading the trade-secret claim alongside the contract claim can supply federal jurisdiction and a broader set of remedies than the NDA provides on its own.

The DTSA created a federal civil action for misappropriation. Under 18 U.S.C. § 1836(b)(1), the owner of a trade secret may sue where the secret relates to a product or service used in, or intended for use in, interstate or foreign commerce.

The statutory definitions in 18 U.S.C. § 1839 then control the analysis. Under § 1839(3), information qualifies only if the owner took reasonable measures to keep it secret and it derives independent economic value from not being generally known or readily ascertainable through proper means. Under § 1839(5), misappropriation reaches acquisition of a trade secret by a person who knew or had reason to know it was acquired by improper means, as well as disclosure or use without express or implied consent by a person who used improper means to acquire it, or who knew or had reason to know it was acquired improperly or under circumstances giving rise to a duty to maintain its secrecy or limit its use.

A signed NDA strengthens the trade-secret case because it is direct evidence of the “reasonable measures” the statute requires and of the duty of confidentiality the defendant owed. But the claims are not the same: an NDA can be breached where the information is not a trade secret, and a trade secret can be misappropriated without a signed agreement. Choosing which claims to plead, and in which forum, is an early decision that shapes discovery, remedies, and settlement value. For the deeper statutory framework, our trade secret litigation practice page walks through the overlap in detail.

Emergency Injunctive Relief in NDA Cases

When continued disclosure or use would cause harm that money cannot repair, a company enforcing an NDA may seek emergency relief: a temporary restraining order to preserve the status quo, followed by a preliminary injunction to hold it through the litigation. This is a request for a judge to restrict conduct before final judgment, often on an expedited record, so the evidence and the proposed order must be precise.

Under Fed. R. Civ. P. 65, a TRO can issue without notice only on a clear showing, by affidavit or verified complaint, of immediate and irreparable injury, and the movant’s attorney must certify in writing the efforts made to give notice and why notice should not be required; any TRO issued without notice expires within 14 days unless the court extends it for good cause for a like period, or the adverse party consents to a longer extension. Rule 65(c) generally requires the movant to post security for the costs and damages of a party later found to have been wrongfully enjoined.

The governing standard — applied generally to both a TRO and a preliminary injunction — comes from Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20 (2008), which requires a movant to show likely success on the merits, likely irreparable harm, a balance of equities in the movant’s favor, and that relief serves the public interest. As the Court emphasized, irreparable harm must be shown as “likely,” not merely possible, 555 U.S. at 22.

Circuits articulate the merits factor differently. The Second Circuit, whose districts include the S.D.N.Y. and E.D.N.Y., permits a movant to satisfy it by showing either likely success or sufficiently serious questions going to the merits to make them a fair ground for litigation, with the balance of hardships tipping decidedly in the movant’s favor, Citigroup Global Markets, Inc. v. VCG Special Opportunities Master Fund Ltd., 598 F.3d 30, 35 (2d Cir. 2010).

That alternative route is not available for every application — a mandatory injunction that alters the status quo by commanding a positive act, such as an order compelling the return or destruction of files, issues only on a clear showing that the movant is entitled to the relief requested, or where extreme or very serious damage would result from denying it, Citigroup, 598 F.3d at 35 n.4. Prohibitory relief that bars further use or disclosure ordinarily does not carry that heightened showing — one reason an application is often framed around non-use and non-disclosure first — though the same heightened showing can also apply where the order would give the movant substantially all the relief sought and could not be undone if the defendant later prevailed.

The Third Circuit, which includes the District of New Jersey, treats likely success and irreparable harm as gateway factors that must be satisfied before the remaining factors are weighed — but sets the merits threshold below a more-likely-than-not showing, requiring only a showing “significantly better than negligible, but not necessarily more likely than not,” while irreparable harm must be shown as more likely than not to occur absent relief, Reilly v. City of Harrisburg, 858 F.3d 173, 179 (3d Cir. 2017).

Where a DTSA claim is pleaded alongside the contract claim, the DTSA also limits how far an injunction granted under the statute can reach — a limit on the DTSA injunction itself, not on relief awarded under the NDA as a matter of contract. Under 18 U.S.C. § 1836(b)(3)(A)(i), a DTSA injunction may not prevent a person from entering an employment relationship — any conditions placed on employment must rest on evidence of threatened misappropriation rather than on what the person happens to know — and it may not otherwise conflict with an applicable state law prohibiting restraints on the practice of a lawful profession, trade, or business.

Where an NDA overlaps with a non-compete or a broad restrictive covenant, the enforceability of that restraint is governed by state law that varies considerably and, in some states, sharply limits or bars such covenants — so the injunction should be built around protecting identified confidential information, not around keeping someone from working.

Damages and Remedies for NDA Breach

Where an injunction is not available or not enough, the remedy for an NDA breach is damages, and the theory has to fit the harm. Contract damages generally aim to put the non-breaching party in the position it would have occupied had the promise been kept — for instance, lost profits, lost business value, or costs traceable to the disclosure — subject to proof and to any limitation-of-liability terms in the agreement. Some NDAs specify a liquidated-damages figure or a fee-shifting provision; whether those clauses are enforced depends on the governing state’s law.

When the conduct also supports a trade-secret claim, the available remedies expand. The DTSA allows recovery for actual loss and for unjust enrichment not captured by actual loss — or, in lieu of damages measured by any other method, a reasonable royalty — and, where misappropriation is willful and malicious, exemplary damages capped at twice the compensatory award and attorney’s fees.

Those enhanced remedies are conditioned on notice. Under 18 U.S.C. § 1833(b)(3)(A), an employer must give the DTSA’s whistleblower-immunity notice in any agreement with an employee — a term § 1833(b)(4) extends to contractors and consultants — that governs the use of trade secrets or other confidential information, or, under § 1833(b)(3)(B), cross-reference a policy document provided to the employee that sets forth the employer’s reporting policy for a suspected violation of law. The requirement reaches only agreements entered into or updated after the DTSA’s May 11, 2016 enactment, § 1833(b)(3)(D), and an employer that satisfies neither route cannot recover exemplary damages or fees against that employee — one more reason the underlying NDA itself should be drafted with the DTSA in mind.

Pleading the contract and statutory claims together lets the party enforcing the NDA present alternative damages theories. The party defending, in turn, works to confine damages to what the evidence supports and to hold the other side to the contract’s own limits.

NDA and Confidentiality Matters We Handle

Both Sides: Enforcement and Defense

NDA disputes are not one-sided, and the same facts read differently from each chair. A company enforcing an NDA works to show a valid, reasonable agreement and a breach that caused real harm, without overreaching into an unlawful restraint on employment. A party defending works to test the agreement’s enforceability, narrow the claimed damages, and — where appropriate — seek a declaratory judgment that no breach occurred or that the confidentiality clause is unenforceable as written. Keyhani LLC takes NDA and confidentiality matters on both the enforcement and the defense side, and our approach to either posture is built with the other side’s likely response in mind.

Working either side of an NDA dispute also clarifies the timing difference: the evidence-preservation and injunction-stage record built in the days after discovering a breach is markedly different from the record a defense engagement inherits once a demand letter has already gone out — a difference that generally favors whichever party moves first.

Issue	Party Enforcing the NDA	Party Defending the Claim
Enforceability	Show a valid agreement supported by consideration, with definite and reasonable terms.	Test formation, consideration, definiteness, and whether the scope or duration is overbroad.
Confidential information	Tie the information at issue to the contract’s own definition of what is protected.	Show the information is public, independently developed, or outside the clause.
Breach and use	Connect access, copying, or transfer to actual or threatened use of the material.	Explain ordinary work activity and preserve independent-development evidence.
Remedy scope	Request targeted return, non-use, and disclosure limits tied to the evidence.	Oppose relief that functions as a non-compete without proof of threatened misuse.

Where We Litigate NDA Disputes

NDA and confidentiality claims can be litigated in federal court — often when a parallel DTSA claim supplies federal jurisdiction — or in state court under the governing state’s contract law, so an early forum judgment frequently matters as much as the merits. Keyhani LLC litigates nationwide and serves U.S. and international clients, appearing with local counsel where a court requires it.

The firm’s regional focus includes the District of New Jersey, the Southern and Eastern Districts of New York, Northern Virginia, and Washington, DC — venues where departing-employee and confidentiality disputes are common. That concentration is a focus, not a limit: the firm handles NDA and confidentiality matters wherever the agreement, the parties, and the evidence require.

Why Keyhani LLC

Keyhani LLC is a litigation-led intellectual property boutique that also handles IP consulting, IP licensing, transactional work, and mediation and arbitration. The firm’s approach to NDA and confidentiality matters is built for either chair, and its work centers on the decisions that actually move a case: whether the agreement is enforceable, whether the breach also states a trade-secret claim, whether a TRO is justified, and how to frame relief without overreaching.

Founder Darius Keyhani has more than 20 years of intellectual property litigation experience and has served as lead counsel in 80+ federal cases, with federal appellate experience and admission to the U.S. Supreme Court bar. Frances Stephenson, a Member of the firm admitted in New York, focuses on patent litigation — including claim construction and infringement analysis — as well as trade-secret and confidentiality disputes. Together they handle enforcement and defense across the full arc of an NDA dispute.

NDA Breach Litigation FAQ