Non-disclosure agreements (NDAs) are a continual bone of contention between vendors and the analyst industry. Most AR professionals feel that their impact is almost universally negative, especially in relation to briefings and analyst events. This post aims to outline the four main negative effects and respond to the three most commonly given reasons in favour of the use of these documents.
Vendors use NDAs not only in an attempt to guard business secrets but also as a way to make executives more attentive to protocol when sharing information. The impact of NDAs on analyst relations is to ensure that the vendor or provider firm only builds deep relationships with analysts who are prepared to sign NDAs. Typically, analyst firms are not allowed to use their own NDAs: the vendor’s NDA must be used. Often these NDAs are exceptionally unfavourable to the analyst: many even forbid the analyst from disclosing information after it is in the public domain.
Four negative effects
There are four principal negative effects of NDAs. They act to disorient, decelerate, compromise and stress the analyst relations process.
- They disorient AR programs doubly: first by focussing attention onto analysts who sign NDAs, and second by focussing analysts’ attention onto information with NDAs. So first, it filters out some analysts who may be influential. Some firms, especially end-user focussed firms (those which mainly advise buyers), only want information that is generally available so that they can advise clients about what is actually available to buy and proven. One such firm is the Real Story Group, which includes CMSwatch: it does not sign NDAs for that reason. The less likely a firm is to sign an NDA, the closer to end-users it may be. As a result, the NDA policy actually shifts the AR programme away from analysts influencing sales and towards analysts who advise your competitors. Secondly, another disorienting effect is that it focusses analysts on the vendor’s upcoming news flow and development plans. This rarely if ever is of value to end-users, even those in the early majority. Large enterprises rarely want to implement new releases. Indeed, the general conservativism is reflected by the fact that IE6 is still the most widely used version of Internet Explorer. What analysts often want to focus on is the current reality of the vendor and its clients. If the vendor focusses too much on the future, then the analysts have to go somewhere else for the grit, and end up speaking to those partners and clients who are most responsive to analysts’ approaches for that sort of information: and those are often the least positive about the vendor.
- NDAs decelerate both the AR process and the process of research. The act of negotiating and refining NDAs takes time and energy away from discussing content. That reduces the productivity of the analyst and means that analysts rely more on those vendors where the information flows most freely. Vendors like to believe that they have information that is unique or scarce, but that’s not true. Indeed, much of the information that analysts see marked as confidential or under NDA is already in the public domain. Working through public information, friends, family, alumni contact and social media users you can find out almost anything you need to find out as an analyst. NDAs being declined can burden analysts with more base research to discover similar data and, in doing so, produce resentment and slow down the pace at which research is published about that vendor.
- NDAs compromise the AR process in two ways, by pushing analysts away and by producing a legal risk. First, NDAs act as a sort of tax on information and, like taxes, they can partially reward avoidance rather than compliance. When this happens, tax lawyers in philadelphia pa can represent you in legal proceedings. So they also encourage analysts to get information from informal connections, leading to more vendor complaints and ‘feedback’ when drafts are discussed. They also undermine the AR team’s own authority, since it stimulates the leaking of information from their own organization. Second, although NDAs aim to insulate the company from risk there is a legal risk relating to fair disclosure rules. If the firm is providing different levels of information to analysts who are in the business of writing publicly available research used by (among others) investors, then that is not fair disclosure. It’s an unquantified reputational and legal risk.
- Finally, NDAs place stress on the relationship In the opinion of Alex Anderson: “Most top tier analysts will flat out refuse to sign a special NDA and by asking you risk damaging your relationship with them.” Even that blunt statement is an understatement. Relationships with analysts are developed not mainly by the volume of information, but by the trust, reciprocity, continuity, equity, warmth and simply liking shown for an analyst. The NDA can suggest to the analyst: ‘we don’t trust you; we don’t expect you to equal our professional standards; we don’t respect the past understanding we had; we don’t want to treat you as well we have done; we don’t have the rapport you thought we had’. I recommend Ar professionals should never suggest to their colleagues that we should ask an analyst to sign an NDA. Because of court cases between IBM and Gartner in the 1980s, it’s a fundamental norm in the analyst industry that oral agreements are respected. I have knew heard of them not being respected.
These four objections are, perhaps, specific to the analyst relations process but it seems to us that they might apply to other business processes as well.
Three bad reasons for NDAs
The most frequently used reasons for using an NDA seem to us to be pretty implausible in the analyst relations process.
- “NDAs help defend patents applied for.” If you’ve applied for your patent InventHelp, it’s probably well protected already. If you’re explaining a patent in a way that makes it possible to replicate the process simply on the basis of comments in the briefing, then your process is probably not patentable.
- “NDAs help protect business secrets that are highly valuable to the competition.” The reality is that if the competition wants your business secrets, then routine competitive intelligence activities can probably gain them. The chance of something passing from an analyst to the competition is very small: after some landmark cases in the 1980s, analysts have been very scrupulous. However, if these are business secrets that you don’t share with clients in the sales process, then there’s really no reason to discuss them with analysts.
- “If you don’t use an NDA then business secrets cannot be protected.” Regardless of NDAs, business secrets are automatically protected. Analysts are the least likely people to reveal business secrets; certainly much less likely than your own senior management (just eavesdrop on the phone calls in any US airport. And, of course, the burden of proof is almost impossible anyway.
To find out more about NDAs, see ‘Win them Over’, Efrem Mallach’s book on analyst and consultant relations.
P.S. I should point out that a much easier and more practical tool is the embargo, which says that specific information can’t be shared until a particular date or occurrence. Almost all analysts are happy with embargos. Part of the reason why they are not widely used is that often spokespeople seem deeply unsure exactly what information is still confidential!
Provocative words, Duncan. And for the most part, I agree. I do believe there are legitimate uses of – well, let’s say embargoes instead. Those have a specific date tied to an upcoming announcement – to me that is an entirely reasonable request, as long as it’s in a timeframe that isn’t months long.
When we’re talking deep strategic initiatives with long time horizons, if the content is that powerful it is most effective to engage the analysts in a consultative dialogue. And that usually involves confidentiality as part of the contract.
One of my colleagues used to say, “if you’re briefing me, it’s because you want me to know. Why would I want to know if I can’t talk about it?” And that’s a key question – just why ARE you telling an analyst something if it isn’t to be talked about?
As someone who has recently briefed Merv under NDA, I guess I can give a special perspective here.
In that case, we briefed Merv on a technical implementation because he asked us. We wanted to build a better relationship with Merv, and felt that if he knew more about the technical details he would understand the bigger picture better – yet we did not want to discuss all the technical details publicly.
This felt to me like a good use of an NDA. An embargo would have been impractical, as I could not give Merv a meaningful date at which he could disclose.
So this was a very specific briefing on a narrow topic and I feel the NDA was justified. What I personally dislike (and distrust) is sweeping NDAs which cover entire, broad-ranging briefings – and on that topic I agree with article whole-heartedly.
Of course, like every other vendor our AR team use NDAs widely – that doesn’t mean I have to like them. But I am sure we use reflexively as a defensive measure, as do most other vendors.
Just bear in mind what NDA stands for – it covers information that is New Damaging or Apocryphal.
Hi Donald, Thanks for the comment! I saw a great tweet from Frank Scavo (@fscavo) about this: “Signing NDA has nothing to do with what I disclose. You ask me not to disclose, I won’t. Whether NDA or not.” So discussing it publicly is a totally separate choice from using an NDA. I can’t see any benefits of using and NDA that are not comre than compensated for by the damage to the AR process.
As Frank also notes, analysts’ consultancy and advisory work will already be convered, either by NDAs or other law about business secrets.
Great article – and of course I agree with it entirely 🙂 To your latter point, we always respect embargoes, but don’t sign NDA’s and never will. Our job is to inform and advise buyers and users of technology – if we can’t tell them stuff, no point bothering. Again though, we will always respect an embargo and have never once broken one. Was accused by a vendor of doing so once, only for me to remind them not only had I not signed an NDA or agreed to an embargo, they hadn’t actually briefed me at all. My source was a youtube video of their CMO giving a speech at their users conference 🙂
However NDA’S are a real bone of contention at times, for example a very recent invitation I received to a well known ECM vendors’ (Enterprise Content Management) Analyst briefing was revoked when I declined to sign an NDA – no NDA no attend I was told.
My take has long been that AR should better recognize that there are two analyst camps, the buy side (like ourselves) and the sell side. If you pack your briefings with sell side analysts you will likely get a lot of very constructive, valuable and interesting feedback. But you need to be clear that you are not doing anything much for you sales efforts. Its the buy side analysts who matter most there. The sell side camp is far bigger and better known to AR, and it is the AR teams prerogative on where to focus their information sharing efforts, but because we buy side analysts are not looking for a cut of your AR budget, does not mean we are of no consequence to your bottom line.
Keep up the good work!
Best
Alan
Hi Dunc,
This would be a great “IIAR Best Practice” if you had included some do’s and dont’s -here are my submissions:
– NDA’s -Use them but don’t abuse them
Analysts want more than all two things: roadmaps and customer cases. An NDA is a good conduit to provide them and make sure they remember not to publish it. That’s the difference between an analyst and a journalist.
– NDA’s are a useful reminder
I train my spokespersons to flag BEFORE and AFTER, like “quote marks” to tell the analyst they need to submit this bit for draft review. That’s it, a verbal NDA is like a reminder. The rest is a question of trust: if you don’t trust the analysts, don’t tell them!
– In some cases you got to do what you got to do
If it’s a product launch, an acquisition, etc, sometimes legal will force AR to get signed NDA’s. If the rules are followed properly (i.e. if lawyers don’t run amok with silly precautions) it means you need to ensure you’re not giving material guidance. This is just a matter of job protection and analysts have to respect it.
Actually, I wrote my own NDA agreement (in my URL). Smaller vendors, as a rule, are fine with it. Multibillion dollar companies give me a harder time, but some of them have by now written decent analyst NDAs (in at least one case under my direct influence :D). Others just sign my agreement. I flat-out refuse to sign NDAs that are too restrictive, and I’ve walked away from vendor business as a result.
Another problem (it’s always large vendors who do this) is when companies falsely accuse you of breaking embargo/NDA, something they’re apt to do any time you publish something they don’t like. E.g., they’re showing a product to customers; a competitor discovers it; the competitor tells me; the original vendor goes beserk (perhaps just in internal communications I find out about later).
Bottom line — big vendors (they’re usually the offenders) do really hurt themselves with NDAs and related nonsense. But emphasis on the signed NDA is often the least of the problem.