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First backdating & now loans to insiders – I think it may be time to get a My Space account…I recently blogged about the PCAOB Staff’s implementation guidance on the new audit report regime.So, many contracts and agreements are considered and negotiated after trade has begun or eager discussions have already taken place – sometimes months past. Thankfully, most jurisdictions allow for contracts, including NDA’s, to be signed with a retroactive date.And when you find yourself in this situation, it may occur to you after-the-fact that you should have signed an agreement in the beginning. This is commonly referred to as “backdating.” But backdating (or adding a retroactive date) any contract can be tricky business, perhaps even more so with NDA agreements because of their nature and content.The most interesting thing I found was this study by an NYU professor referenced in the WSJ report.

Thanks to the limitations of science, we can’t go back in time and undo a leak of trade secrets or confidential information.Interestingly though, it hasn’t resulted in a lot of enforcement activity.There may be a few others, but I’m only aware of one other enforcement proceeding dealing with loans to insiders – and that was way back in 2005.Hindsight is always 20/20 and so it goes in the professional world, as well.Sometimes our mouths move faster than our brains and business moves faster than our keyboards.

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