Private Law Theory

ABSTRACT
Nondisclosure agreements intended to keep secret information that could harm one or both parties’ reputations have proliferated over the past decade. Many of them have been breached, some quite famously. Does a third party who assists a contracting party in breaching such an agreement — a member of the press or a family member, for example — risk liability for tortious interference with performance of a contract? This article asserts that the answer is no in most instances, in part because of limitations inherent in the tort and in part because such liability would violate the defendant’s First Amendment rights. The answer proves more difficult in cases where the third party acted wrongfully or the information is purely private and not of public concern.

Fenster, Mark, Breach Agents: The Legal Liability of Third Parties for the Breach of Reputational NDAs (August 1, 2024), University of Florida Levin College of Law Research Paper Forthcoming; 6 Journal of Free Speech Law 47 (2025).