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The Ketchum Report (Continued)


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With NDA's in place, it's not likely we're going to find out any info about who was involved. Lawsuits would be pending. So for those who keep on asking about other participants or scientists to be named........the answers can not be provided as demanded. Simple as that. Nothing to hide.......a totally legal perspective.

If this link has an accurate copy of the NDA, I'm not sure it's enforceable. Among other things, it doesn't look like there is any consideration being provided to the Individual - I see how Ketchum benefits, but that's it. I strongly encourage any individuals who have signed such an NDA to consult an attorney in their jurisdiction about whether this NDA actually binds them.

There are also questions of public policy, even beyond whether the NDA is a valid form in and of itself. For instance, states generally don't punish breaches of an NDA if the breach was done to prevent fraud or criminal behavior. For instance, say Acme Widget Co. required its executives to sign an NDA that prohibited them from discussing any aspects of Acme's operations. Acme's CFO discovers that Acme has been cooking the books to fool investors for several years. As a society, we don't like companies defrauding investors because it hurts the economy. In that case, Acme's CFO would not be bound by the NDA because public policy favors not defrauding people over not revealing fraudsters' secrets.

This post should not be taken as legal advice. I strongly advise any individual who signed an NDA with Ketchum to consult their attorney about the NDA.

Edited by leisureclass
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Guest thermalman

That NDA is likely how MK would want it. If it was her "find", then all the benefits would likely be directed towards her. She cannot patent the results, so this would be the only other way for proprietary payoff.

Edited by thermalman
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Universal primers were also mentioned. Novelty found here could also be "coming back the same"

Or... "lack of novelty" could be coming back the same. Either way, it's just words from her that don't really mean much when the data and conclusions are not holding water.

If this link has an accurate copy of the NDA, I'm not sure it's enforceable. Among other things, it doesn't look like there is any consideration being provided to the Individual - I see how Ketchum benefits, but that's it. I strongly encourage any individuals who have signed such an NDA to consult an attorney in their jurisdiction about whether this NDA actually binds them.

There are also questions of public policy, even beyond whether the NDA is a valid form in and of itself. For instance, states generally don't punish breaches of an NDA if the breach was done to prevent fraud or criminal behavior. For instance, say Acme Widget Co. required its executives to sign an NDA that prohibited them from discussing any aspects of Acme's operations. Acme's CFO discovers that Acme has been cooking the books to fool investors for several years. As a society, we don't like companies defrauding investors because it hurts the economy. In that case, Acme's CFO would not be bound by the NDA because public policy favors not defrauding people over not revealing fraudsters' secrets.

This post should not be taken as legal advice. I strongly advise any individual who signed an NDA with Ketchum to consult their attorney about the NDA.

I've been considering releasging the copy of her NDA that I have (blank, unsigned), for some time now - I actually just about did it on this forum a couple hours ago. I hadn't realized that other ones were out on the web. Not sure if it is identical to the one I have or not.

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That NDA is likely how MK would want it. If it was her "find", then all the benefits would likely be directed towards her.

The problem with that, though, is that that's not how the courts want it. In order for there to be a valid contract, there needs to be an offer, consideration, and acceptance. I'm not seeing any consideration here - it's pretty obvious how Ketchum benefits, but how do the other parties benefit?

Again, not legal advice - consult your attorney.

Edited by leisureclass
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Guest thermalman

But if the other party signs it, there really is no other legal option for them ? Right?

Edited by thermalman
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But if the other party signs it, then there really is no other option for them? Right?

Let me preface this by saying that this is not legal advice, and that anyone who has questions should consult an attorney about their specific situation.

To answer your question, if it's not a valid contract, there's no contract, regardless of whether it was signed or not.

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The problem with that, though, is that that's not how the courts want it. In order for there to be a valid contract, there needs to be an offer, consideration, and acceptance. I'm not seeing any consideration here - it's pretty obvious how Ketchum benefits, but how do the other parties benefit?

Again, not legal advice - consult your attorney.

I suppose the argument could be made that the consideration being received by the individuals signing the NDA is the right to view Melba's secret and valuable data. Consideration does not have to take the form of money, property, or a tangible thing.

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Guest thermalman

Let me preface this by saying that this is not legal advice, and that anyone who has questions should consult an attorney about their specific situation.

To answer your question, if it's not a valid contract, there's no contract, regardless of whether it was signed or not.

Agreed. But that's left up to the courts to decide, if it comes down to it.

@plen Agreed as well.

Edited by thermalman
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I suppose the argument could be made that the consideration being received by the individuals signing the NDA is the right to view Melba's secret and valuable data. Consideration does not have to take the form of money, property, or a tangible thing.

That would certainly be the argument that I'd make, but I think that's a pretty weak argument. Among other things, I think that raises a question of unconscionability - Ketchum still gets all the profits, and the submitters get to look at data with which they can do nothing.

Edited by leisureclass
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Leisureclass, question.

I understand NDA's as they deal with employment - and usually they extend to a period of time after employment has ended as well. But, in the case of something like this - how long can the NDA be enforced? Can it be extended indefinitely?

Do you have any thoughts on this? Not acting as my attorney or offering legal advice, just simply an opinion as an observer. :)

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Guest thermalman

That would certainly be the argument that I'd make, but I think that's a pretty weak argument. Among other things, I think that raises a question of unconscionability - Ketchum still gets all the profits, and the submitters get to look at data with which they can do nothing.

Maybe the submitters will receive deferred compensation? We don't really have all the facts.

Edited by thermalman
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Leisureclass, question.

I understand NDA's as they deal with employment - and usually they extend to a period of time after employment has ended as well. But, in the case of something like this - how long can the NDA be enforced? Can it be extended indefinitely?

Do you have any thoughts on this? Not acting as my attorney or offering legal advice, just simply an opinion as an observer. :)

The best answer I can give is it depends. If the NDA includes an expiration date, as it does here, it generally cannot be extended absent mutual agreement by the parties, along with additional consideration.

Maybe the submitters will receive deferred compensation? We don't really have all the facts.

That is irrelevant unless that compensation is specified as consideration for the NDA in the NDA. That isn't the case here.

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Thermalman said:

Maybe the submitters will receive deferred compensation? We don't really have all the facts.

Is it in the NDA?

Leisureclass said:

The best answer I can give is it depends. If the NDA includes an expiration date, as it does here, it generally cannot be extended absent mutual agreement by the parties, along with additional consideration.

Thank you for your thoughts. I am willing to bet there are two different NDA's - one for the sample submitters and one for the labs and other scientists working with her.

Not a legal opinion, just a guess.

Edited by Melissa
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Thermalman said:

Is it in the NDA?

There might be more pages to the NDA outlining the compensation? We really don't have all the facts, as per my previous post.

Edited by thermalman
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