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Massachusetts Non-Disclosure Agreement Requirements

Unlike California, Delaware, Illinois, Kansas, Minnesota, North Carolina, Utah, and Washington, Massachusetts has no statute carving an employee's own-time inventions out of an assignment clause, so an invention-assignment provision in a Massachusetts NDA is governed by ordinary contract law rather than a statutory limit.

Introduction

Unlike California, Delaware, Illinois, Kansas, Minnesota, North Carolina, Utah, and Washington, Massachusetts has no statute carving an employee's own-time inventions out of an assignment clause, so an invention-assignment provision in a Massachusetts NDA is governed by ordinary contract law rather than a statutory limit. Trade secrets shared under a Massachusetts NDA are separately protected by the Massachusetts Uniform Trade Secrets Act (M.G.L. c.93, Sections 42 through 42G), and a misappropriation claim generally must be filed within three years of when the misappropriation was discovered or reasonably should have been discovered. Restrictive covenants are handled differently: Massachusetts has one of the most detailed noncompete statutes in the country, the Massachusetts Noncompetition Agreement Act (M.G.L. c.149, Section 24L), but that statute expressly excludes ordinary nondisclosure and confidentiality agreements from its definition of a regulated noncompete. A Non-Disclosure Agreement in Massachusetts is a contract in which one or both parties agree to keep specified information confidential, and by the Act's own terms it does not have to meet Section 24L's requirements, a 12-month cap on any restricted period, garden leave pay of at least 50 percent of the employee's highest annualized base salary, and advance notice, because those requirements apply only to agreements restricting future competitive work, not to confidentiality or invention-assignment agreements. That exclusion has a limit worth knowing: it keeps an NDA out of Section 24L's specific procedural requirements, but a confidentiality clause written broadly enough to function as a de facto restraint on someone's ability to work can still be evaluated under Massachusetts's ordinary common-law reasonableness standard for restrictive covenants, the same standard that governed noncompetes before the 2018 Act existed.

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Key Things to Know

  1. 1

    Trade secret protection runs through the Massachusetts Uniform Trade Secrets Act (M.G.L. c.93, Sections 42 through 42G), separate from whatever the NDA itself says.

  2. 2

    That exclusion applies to the Act's specific requirements, not to the underlying question of overbreadth. A confidentiality clause broad enough to function as a de facto restraint on someone's ability to work in their field can still be evaluated under Massachusetts's ordinary common-law reasonableness standard for restrictive covenants, separately from Section 24L.

  3. 3

    Massachusetts has no statute, unlike California, Delaware, Illinois, Kansas, Minnesota, North Carolina, Utah, and Washington, that carves an employee's own-time, own-resources inventions out of an assignment clause. An invention-assignment provision in a Massachusetts NDA is governed by ordinary contract law rather than a statutory limit.

  4. 4

    A trade secret misappropriation claim in Massachusetts generally must be filed within three years of when the misappropriation was discovered or reasonably should have been discovered, and a continuing disclosure or use of the same trade secret counts as a single claim rather than restarting the clock (M.G.L. c.93, Section 42E).

  5. 5

    Massachusetts's Noncompetition Agreement Act (M.G.L. c.149, Section 24L), one of the most detailed noncompete statutes in the country, requiring a 12-month cap and garden leave pay of at least 50 percent of the employee's highest annualized base salary, explicitly excludes 'nondisclosure or confidentiality agreements' and 'invention assignment agreements' from its own definition of a regulated noncompete agreement.

  6. 6

    Mutual NDAs, where both sides share confidential information, and one-way NDAs, where only one side does, are both ordinary enforceable contracts in Massachusetts; which one fits depends on whether the exchange runs both directions, like a partnership or acquisition discussion, or one direction, like pitching an investor.

  7. 7

    A Massachusetts court can order injunctive relief to stop an ongoing or threatened breach of a valid NDA, and if the disclosed information also qualifies as a trade secret, the Massachusetts Uniform Trade Secrets Act allows exemplary damages up to twice the actual award for willful and malicious misappropriation, plus attorney's fees where a claim or defense was made in bad faith.

Key decisions before you file

Before you file a Non-Disclosure Agreement in Massachusetts, a few decisions shape the document: which option to choose and what each one means. The Non-Disclosure Agreement guide walks through them.

Open the Non-Disclosure Agreement guide

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MASSACHUSETTS NON-DISCLOSURE AGREEMENT

This Non-Disclosure Agreement is entered into by [Party A Name] of [City], Massachusetts and [Party B Name] of [City], Massachusetts (individually a "Party" and together the "Parties").

  1. Purpose. The Parties are entering discussions concerning [describe the business purpose, e.g. a potential business relationship], and one or both may need to share Confidential Information to pursue it.

  2. Definition of Confidential Information. "Confidential Information" means nonpublic business, technical, or financial information one Party discloses, marked confidential or reasonably understood as such from context, including any trade secret as defined by the Massachusetts Uniform Trade Secrets Act, M.G.L. c.93, Section 42. It excludes information the receiving Party already lawfully held, information that becomes public through no fault of the receiving Party, independently developed information, and information a third party discloses without owing anyone a confidentiality duty.

  3. Obligations. The receiving Party will use Confidential Information only for the Section 1 purpose, protect it with at least the care it gives its own comparably sensitive information and never less than reasonable care, and limit access to employees, contractors, or advisors who genuinely need it and are themselves bound to confidentiality at least as strict as this Agreement. No wider disclosure is permitted without the disclosing Party's prior written consent.

  4. Scope Limitation (Massachusetts-Specific). The Massachusetts Noncompetition Agreement Act, M.G.L. c.149, Section 24L, is one of the most prescriptive noncompete statutes in the country, capping any restricted period at 12 months and requiring garden leave pay of at least half the employee's highest annualized base salary, yet Section 24L(a) excludes nondisclosure, confidentiality, and invention assignment agreements from its own definition of "noncompetition agreement," so none of those requirements attach here. That exclusion removes only Section 24L's specific procedures; it does not immunize an overbroad clause. A confidentiality provision broad enough to function as a disguised restraint on someone's future work remains subject to the common-law reasonableness standard that governed Massachusetts restrictive covenants before the 2018 Act, since Section 24L never reaches this kind of agreement at all. This Agreement is accordingly limited to the information in Section 2, and never restricts either Party's general skill, knowledge, training, or experience.

  5. Federal Whistleblower Notice. Under the Defend Trade Secrets Act, 18 U.S.C. Section 1833(b), neither Party faces criminal or civil liability for disclosing a trade secret in confidence to a government official or an attorney solely to report a suspected legal violation, or for disclosing one in a sealed court filing. This notice appears because the Act conditions the disclosing Party's exemplary-damages and fee remedies against an individual on giving it.

  6. Term. Confidentiality duties here run for [X years] from signing, though information meeting the trade secret definition in the Massachusetts Uniform Trade Secrets Act stays protected for as long as it remains one.

  7. Return or Destruction. Within [X days] of the disclosing Party's written request, or promptly once the Section 1 purpose concludes, the receiving Party must return all Confidential Information or certify in writing that every copy, including electronic copies, has been destroyed.

  8. Remedies. Because a breach here threatens harm damages alone may not repair, the non-breaching Party may seek injunctive relief under the equity jurisdiction the Massachusetts supreme judicial and superior courts hold under M.G.L. c.214, Section 1, plus actual damages. A breach involving a trade secret also draws directly on the Massachusetts Uniform Trade Secrets Act: an injunction under Section 42A, damages for actual loss or unjust enrichment under Section 42B, exemplary damages up to twice that award for willful and malicious misappropriation, and attorney's fees under Section 42C for a bad-faith claim or defense.

  9. Governing Law. Massachusetts law governs this Agreement. Rather than a fixed rule keyed to where it was signed, Massachusetts courts resolve contract choice-of-law questions under the functional approach the Supreme Judicial Court adopted in Bushkin Associates, Inc. v. Raytheon Co., 393 Mass. 622 (1985), weighing the Parties' interests, the states involved, and the interstate system under Restatement (Second) of Conflict of Laws Section 6, an approach that favors Massachusetts law given both Parties' presence here.

  10. Miscellaneous. The Parties may sign electronically; an electronic signature carries the same effect as a handwritten one under the Massachusetts Uniform Electronic Transactions Act, M.G.L. c.110G, and the federal ESIGN Act, 15 U.S.C. Section 7001. A provision a court holds unenforceable does not affect the rest. Each Party's promises here, exchanged for the other's, form adequate consideration under Massachusetts contract law.

[Party A Signature] ____________________ Date: __________ [Party B Signature] ____________________ Date: __________

Massachusetts Requirements for Non-Disclosure Agreement

Massachusetts Trade Secrets Act Compliance (M.G.L. c.93, Sections 42 through 42G)

The agreement must comply with the Massachusetts Uniform Trade Secrets Act, which provides legal protection for trade secrets and confidential business information against misappropriation.

Defend Trade Secrets Act Compliance (18 U.S.C. Section 1836 et seq.)

The NDA must comply with the federal Defend Trade Secrets Act, which provides a federal cause of action for trade secret misappropriation and requires notice of whistleblower immunity in agreements governing confidential information.

Whistleblower Protection Provision (18 U.S.C. Section 1833(b))

The NDA must include a provision notifying the receiving party of immunity from liability for confidentially disclosing trade secrets to government officials or attorneys for the purpose of reporting violations of law.

Massachusetts Statute of Frauds (M.G.L. c.259, Section 1)

The NDA must be in writing and signed by the party against whom enforcement is sought if, by its terms, it is not to be performed within one year of being made.

Massachusetts Noncompetition Agreement Act (M.G.L. c.149, Section 24L)

Section 24L regulates actual noncompete provisions with a 12-month duration cap, required garden leave pay of at least half the employee's highest annualized base salary, and advance notice, but Section 24L(a) explicitly excludes nondisclosure or confidentiality agreements and invention assignment agreements from its own definition of a regulated noncompete. An ordinary Massachusetts NDA is therefore not subject to Section 24L's requirements; only an actual non-compete provision embedded in the agreement, or a confidentiality clause broad enough to function as a disguised restraint on future work, can draw scrutiny, and that scrutiny runs through Massachusetts common-law reasonableness review rather than Section 24L itself.

Economic Espionage Act Compliance (18 U.S.C. Sections 1831 through 1839)

Acknowledges federal protections against economic espionage and theft of trade secrets, including criminal penalties, that may apply to the confidential information being protected.

Massachusetts Data Security Law (201 CMR 17.00)

If the NDA covers personal information of Massachusetts residents, it must address compliance with Massachusetts's Standards for the Protection of Personal Information of Residents of the Commonwealth.

Massachusetts Consumer Protection Act (M.G.L. c.93A)

The NDA must not contain provisions that would constitute unfair or deceptive acts or practices under Massachusetts consumer protection law.

Federal Electronic Signatures in Global and National Commerce Act (15 U.S.C. Section 7001 et seq.)

Addresses the validity of electronic signatures if the agreement will be executed electronically.

Massachusetts Uniform Electronic Transactions Act (M.G.L. c.110G)

The NDA should comply with Massachusetts's version of the Uniform Electronic Transactions Act if electronic signatures or records will be used.

Massachusetts Fiduciary Duty Law (Massachusetts Common Law)

The NDA should address fiduciary duties that may arise under Massachusetts law when confidential information is shared with individuals who may owe fiduciary obligations, separate from the NDA's own terms.

Massachusetts Contract Formation Requirements (Massachusetts Common Law)

The NDA must meet Massachusetts's requirements for valid contract formation, including offer, acceptance, consideration, legal purpose, and capacity of the parties.

Federal Antitrust Law Compliance (15 U.S.C. Sections 1 through 7, Sherman Act; 15 U.S.C. Sections 12 through 27, Clayton Act)

The NDA must not contain provisions that could be construed as anticompetitive under federal antitrust law, such as unreasonable restraints on trade between competitors.

Massachusetts Privacy Laws (M.G.L. c.214, Section 1B, Right of Privacy)

The NDA should address compliance with Massachusetts's statutory right of privacy if the confidential information includes personal data of Massachusetts residents.

Federal Securities Laws (15 U.S.C. Section 78j(b); 17 C.F.R. Section 240.10b-5, Rule 10b-5)

If the NDA relates to investment discussions, it should address compliance with federal securities laws regarding disclosure of material non-public information.

Remedies and Injunctive Relief (M.G.L. c.214, Section 1, Equity Jurisdiction)

M.G.L. c.214, Section 1 gives the Massachusetts supreme judicial and superior courts general equity jurisdiction, including authority to grant injunctive relief for a breach of this Agreement in addition to damages. Under Massachusetts Rule of Civil Procedure 65(c), a court ordinarily requires the party seeking a preliminary injunction to post security unless it finds good cause to waive that requirement, so this remedy is not automatically available without a bond.

Severability under Massachusetts Law (Massachusetts Common Law)

The NDA should include a severability clause consistent with Massachusetts law, allowing the remainder of the agreement to be enforced if any provision is found invalid or unenforceable.

Frequently Asked Questions

A Non-Disclosure Agreement in Massachusetts is an ordinary contract in which one or both parties agree to keep specified information confidential. It can be mutual, where both sides share confidential information, or one-way, where only one side does. Trade secrets shared under the agreement are also separately protected by the Massachusetts Uniform Trade Secrets Act (M.G.L. c.93, Sections 42 through 42G) regardless of what the NDA itself says.

Generally no. The Massachusetts Noncompetition Agreement Act (M.G.L. c.149, Section 24L) defines 'noncompetition agreement' to specifically exclude nondisclosure or confidentiality agreements and invention assignment agreements, so an ordinary Massachusetts NDA does not have to meet the Act's requirements, including the 12-month duration cap, garden leave pay of at least 50 percent of the employee's highest annualized base salary, and advance notice. A confidentiality clause drafted broadly enough to function as a de facto restraint on someone's ability to work can still be scrutinized under Massachusetts's ordinary common-law reasonableness standard for restrictive covenants, separate from Section 24L.

It is not covered by the Massachusetts Noncompetition Agreement Act itself, since Section 24L's definition of 'noncompetition agreement' excludes confidentiality agreements outright. But a confidentiality definition written broadly enough to stop someone from working in their field afterward can still be challenged under Massachusetts common law, which requires any restraint on trade to be reasonable in scope, duration, and the legitimate business interest it protects. Keeping the confidentiality definition tied to genuinely sensitive information, rather than broad categories of general knowledge or skill, is what keeps a Massachusetts NDA out of that scrutiny.

A trade secret misappropriation claim under the Massachusetts Uniform Trade Secrets Act generally must be brought within three years after the misappropriation is discovered, or after it reasonably should have been discovered with reasonable diligence (M.G.L. c.93, Section 42E). A continuing disclosure or use of the same trade secret counts as a single claim rather than restarting the clock each time. A separate breach-of-contract claim over the NDA itself follows Massachusetts's ordinary written-contract limitations period.

It can, depending on how the invention-assignment clause is written. Unlike California, Delaware, Illinois, Kansas, Minnesota, North Carolina, Utah, and Washington, Massachusetts has no statute limiting an employer's ability to require assignment of inventions an employee develops on their own time with their own resources. The Massachusetts Noncompetition Agreement Act excludes invention assignment agreements from its own requirements rather than imposing a substantive limit on them, so the scope of what a Massachusetts NDA or employment agreement can require is governed by the contract language itself and ordinary contract law.

It depends on whether confidential information will flow in both directions or only one. A mutual NDA fits a two-way exchange, such as a merger, partnership, or joint-venture discussion where both sides disclose sensitive information. A one-way NDA fits a one-directional exchange, such as pitching a business plan to an investor who is not sharing anything confidential back. Both forms are equally enforceable in Massachusetts; the choice is about which structure matches the actual relationship.

No. A Massachusetts NDA is an ordinary contract, not a formal instrument like a will or power of attorney, so it does not require notarization or witnesses to be valid. It only needs the standard elements of a valid contract: an offer, acceptance, and consideration, along with signatures from the parties being bound.

The non-breaching party can seek injunctive relief to stop an ongoing or threatened disclosure, along with damages caused by the breach. If the disclosed information also qualifies as a trade secret, the Massachusetts Uniform Trade Secrets Act provides an additional, independent basis for relief, including damages for actual loss and unjust enrichment, plus exemplary damages up to twice that amount if the misappropriation was willful and malicious, and attorney's fees where a claim or defense was made in bad faith (M.G.L. c.93, Sections 42B and 42C).