Draft Competitor Confidentiality Agreement Review

---
name: draft-competitor-confidentiality-agreement-review
task_id: antitrust-competition/draft-competitor-confidentiality-agreement-review
description: Closes gaps in identifying antitrust risks in competitor confidentiality agreements, including information exchange, no-poach enforceability, clean-team protocols, interaction effects, and pre-clearance coordination risk.
activates_for: [planner, solver, checker]
---

# Skill: Competitor NDA Antitrust Review

## 2. Failure modes the skill is correcting

- Baseline analyzes each provision in isolation and misses compounding interaction effects — the combination of a residuals clause with an absent clean-team protocol can be more risky than either issue alone
- Baseline fails to identify the governing competition-law framework for competitor information exchange risks and related restraints, including antitrust and unfair-competition principles
- Baseline describes risks without anchoring them to the governing authority, the specific clause interaction, or the practical client consequence
- Baseline flags issues without a disciplined severity ranking, making it hard to separate structural competition risk from drafting polish

## 3. Legal frameworks / domain conventions that apply

- Antitrust law: an agreement between competitors to share competitively sensitive information can present per se, rule-of-reason, or similar competition-law risk depending on the nature and specificity of the information and the surrounding safeguards; cite the applicable federal and state competition authorities, and the relevant merger-control or information-exchange principles if the setting is transactional
- Unfair-competition law: broader competition-law standards may reach information exchanges or coordination that fall short of a classic per se restraint; identify the controlling statute, regulation, or case authority where available
- No-poach or non-solicitation provisions: analyze any such restriction as a potentially sensitive competitor restraint and assess whether it is narrowly tied to the transaction context, scope, and duration; cite the governing antitrust authority and any contract-enforcement authority implicated
- Clean-team protocols: use heightened access controls for sensitive competitive information such as pricing, margins, strategy, or similar data; absence of a clean-team process can increase risk when paired with broad access rights or residuals language
- Residuals clause: permits employees to use information retained in unaided memory; combined with the absence of a clean-team protocol, this can create a memory-contamination risk that undermines the confidentiality objective
- Pre-clearance coordination risk: any NDA provision that permits operational coordination or information use before regulatory clearance can suggest premature integration or similar risk in a transaction setting
- NDA duration and renewal: automatic renewal combined with regular information updates can create an effectively open-ended competitor-information-sharing arrangement; a fixed term and clear sunset concept are safer to evaluate
- Standard exclusions: without exclusions for independently developed information, publicly known information, and information known prior to disclosure, the confidentiality scope may be overbroad

## 4. Analytical scaffolds

1. Enumerate the relevant provisions, schedules, and supporting materials first; if only one NDA is in scope, say so affirmatively and explain why no separate scenario split is needed
2. Information scope: assess whether the confidential-information definition appropriately excludes known, public, and independently developed information; flag overbroad definitions
3. Access controls: assess whether a need-to-know restriction is present; if absent, flag this gap and connect it to clean-team analysis
4. Clean-team analysis: determine whether heightened segregation of sensitive information is required; if pricing or margin data will be shared, assess whether the NDA establishes an appropriate protocol
5. Residuals clause: analyze in combination with clean-team absence — together these can create memory-contamination risk; assess both together rather than separately
6. No-poach provision: assess enforceability as a competitor restraint; evaluate whether any such term is limited to the specific transaction context and duration
7. Integration planning or operational coordination language: flag any provision that allows the parties to coordinate operations before clearance as a pre-clearance coordination risk; apply the governing merger-control framework if relevant
8. Duration: assess whether automatic renewal combined with periodic information updates creates an effectively indefinite sharing arrangement; evaluate a fixed term with a sunset concept
9. Cite applicable law: identify the relevant antitrust and unfair-competition authorities that govern the issue set, and cite them explicitly where appropriate
10. Interaction effects: identify pairs of provisions that are individually borderline but together create heightened risk; present these as a combined analysis
11. For each issue, include severity, the clause interaction or supporting source, the rule or authority, and the downstream client consequence; do not stop at description

## 5. Vertical / structural / temporal relationships

- Treat the NDA as a horizontal-competitor instrument, not a generic confidentiality form, so provisions that are routine in ordinary commercial NDAs may be materially riskier here
- Read the document vertically: definitions, permitted use, access controls, residuals, term, non-solicit, integration language, and dispute provisions can interact to change the antitrust analysis
- Read the record temporally: pre-signing diligence, signing, any pre-clearance period, and post-clearance implementation may trigger different levels of sensitivity
- When the materials show recurring updates or staged disclosures, analyze whether the arrangement becomes a continuing information-exchange channel rather than a one-off disclosure
- When one clause narrows conduct but another clause expands access or use, assess the net effect, not either clause alone

## 6. Output structure conventions

- Start with a short severity legend using an ordinal scale such as Critical / High / Medium / Low, defined once
- Provide an issue register with one row per issue, each row including:
  - issue title
  - severity
  - affected clause or provision cluster
  - legal basis with controlling authority
  - why the clause is risky in this competitor-NDA context
  - interaction with other provisions, if any
  - practical consequence for the client
- Include a separate interaction-risks section for compound problems, especially where access rights, residuals, and absent clean-team controls reinforce each other
- End with a Recommended Actions block
  - Use imperative verbs
  - Assign each action to a responsible role drawn from the materials where possible
  - Tie each action to a deadline, milestone, or urgency level if an explicit date is unavailable
- If recommending revisions, state the change in drafting terms, not just the policy objective
- Keep the memo advisory and implementation-oriented; avoid abstract doctrine unconnected to a clause, source document, or drafting fix