Risks of Opportunism and Gossips
Indirect effects of secrecy breaches are often catastrophic—
particularly with false accusations against the victims.
Serious ramifications routinely develop from a wide variety of situations that are rarely labeled as corporate espionage, largely because of legal and inflammatory considerations. A frequent legal accusation would often result in one or more of the following, often occurring completely independent of the eventually accused respective principals (indeed usually without even implied consent):
- insider trading,
- theft of intellectual property—such as technology development, scientific innovation, and/or a business plan),
- anticompetitive collusion, and/or
- breach of confidentiality pertaining to an NDA.
A deliberate conspiracy of complex corporate espionage is reasonably rare. Among the general public, concepts of corporate espionage often conjure visually exciting portrayals of large-budget industrial espionage from movies and television shows, but fiction provides entertainment value because of its imaginative storytelling, providing an escape from mundane life.
Among the greatest risks of corporate espionage by opportunistic employees and corporate coup leaders is being the victim of false accusations—adding insult to injury and often destroying good business opportunities and good careers.
Corporate Finance and Fund Management
On occasion, a small offshore investment bank or a discretionary investment fund (such as a discretionary hedge fund or a late-stage PEG that likes public M&A strategies) will exploit an unsolicited tip, but, even then, most are careful to prevent risks of their Stateside or EU investors from an insider trading accusation. Any fund consultant would bury a tip, and guidance thereon by a fund would usually try to stay within the safety of a small-percentage edge via a modestly routine covered option.
The danger to principals is that those trades by high-yield, consistently outperforming funds are watched carefully by investment bank house traders, hedge funds, and day-traders, quickly creating traction and a buzz among newsletter reporters and analysts, leading to a snowball effect that ultimately can severely damage profitability or capital generation—and put a good-faith director, loyal officer, reputation-dependent hardworking banker, and/or ethically brilliant fund manager into the nightmare of false accusations from a guilty-until-we-find-ambiuities-that-we-can-contrive-as-not-innocent SEC investigation.
Exponential Harm to Confidentiality Victims via False Accusations
A deliberate conspiracy of complex corporate espionage is reasonably rare. Among the general public, concepts of corporate espionage often conjure visually exciting portrayals of large-budget industrial espionage from movies and television shows, but fiction provides entertainment value because of its imaginative storytelling, providing an escape from mundane life. Most corporate espionage does not occur from megalomaniacal executives, or from corrupt officials working with sinister corporations. The socially unpleasant reality is that the vast majority of instances of corporate confidentiality breaches occur from gossip-spreading hourly employees, disloyal employees with friends or prior employment at competitors, hourly workers of vendors and customers, and subversive mid-level professionals and managers.
This author and his associates are personally knowledgeable of countless serious examples, including applied to business and finance, that indeed loose lips sink ships. The following is a composite of three known, factual experienes; similar situations represent staples of securities law textbooks (including at least one textbook citing this author, and sensationally inaccurate newspaper reports about my partner's declassified US government and financing experiences).
- The assistant of an honorable securities-licensed CFO surmises an upcoming major event (based on brief notations from a recent meeting that she incidentally sees),
- who discusses with her coworker (with the exciting preface that this is a secret, so don't tell anyone) about the job implications of the event,
- who figures that she should mention it to her husband (who is also a friend of the CFO),
- who explains to his broker the need for a naked put option in family preparation of the looming job loss,
- who pays off some urgent debt by sharing a tip with a fund consultant…and
- a few months later the SEC mounts and investigation against the CFO,
- who is forced to sign a consent decree regarding converged abnormalities (albeit without the initial suspicion of insider trading) that the SEC lawyers were unmotivated to understand as being legitimate,
- who finds himself in a related lawsuit…and
- who fades into oblivion with a broken family, while working independent-contractor non-financial clerical jobs in under-insured poor health, after losing custody of his daughter.
Human Reality v. Legal Theory
NDAs and secrecy laws are routinely disrespected.
For the basis of developing these concepts, your dutiful author, and several associates, each cites decades of previous experience as decision-makers in matters of strategy—spending decades in various specific matters of secrecy, coordinating with executives, world leaders, principal lawyers, and international financiers.
NDAs are routinely obtained, and can be particularly prudent from domestic companies of substantial domestic assets, and from sophisticated professionals who would be reasonably subject to effective enforcement. Blanket NDAs also are routinely used as part of a blanket culture among employees and independent contractors. However, from a non-legal psychological perspective, they can be counter-productive with unsophisticated individuals, based on the multiple effects of telling someone that something is a secret.
Therefore, basic tradecraft of any sane intelligence officer or contractor anywhere in the world is simply to avoid exposing sensitive information, maintaining boring levels of information and inconsistent methods. As an example, the wife of an associate of our group had no idea that he was even a US government employee—not an international salesman—until a federal judge released information under the Freedom of Information Act (many years later, the massive fallout of which led to the creation of Dignitary Discretion). US law and internal policies now enable spouses to be aware of particular officer careers, but there is a consensus among a microsample that maintaining the necessary rigors is not particularly difficult with sufficient focus and compartmentalization, and anyone who would not anticipate that they could maintain such tight compartmentalization would probably not be fruitful with long-term services from us. Instead, only spiritual and moral considerations of that example should be relevant, not the extraordinary personal strength, applied to instantaneous and endlessly extensive mental analyses of myriad competencies, to be successful at it.
Low-level officials and previously unscathed managers often rely on their introductory knowledge of NDAs and statutory laws. Monochromatic idealism of what others can and cannot do is often different from what others will actually do…and then what they will falsely accuse dehumanized leaders of doing.
Seasoned lawyers and executives often have contrasting attitudes. From a legal perspective, your lawyer—after considering your particular circumstances—could opine that enforcing an NDA without bulletproof evidence is statistically difficult, and that full recovery of all indirectly serious or catastrophic damages from most types of defendants would be so rare that critical sensitivities should not be exposed based on the presumption of being able to recover damages from a defaulted NDA. Of course, every situation is unique, with a variety of variables, which must be counseled by your lawyer.
Actual Injustice and Popular Unsophistication
Real-World Risks to Good Leaders
Lost in Quicksand
Serious complications arise when relatively sophisticated and just countries simply rubber-stamp the extradition or civil decisions of dishonest ones. One of countless examples includes a textbook case that involves innocence that was absolutely proven by determined family members, but not until after catastrophe had already irreversibly occurred.
Ambiguous and Conflicting Laws
Among different countries and regions therein, serious conflicts and ambiguities in commercial and tax laws create impossible quandaries for ethical business with operations that are relevantly complex or novel. Associated individuals inevitably incur unjust accusations relating to taxes or securities, by self-serving, simple-minded bureaucrats and prejudicially superficial apathy throughout most countries.
Self-Defense Effectively Disabled
We know of an international businessman who, despite his ethical business habits, was targeted by corrupt administrators in another country. He was arrested in Switzerland, had all of his corporate and personal assets frozen around the world, and is now penniless, serving life in prison. As is commonly lamented by those who naively accept statutes and ethical practices as being reasonably dependable, he thought that his freedom and assets were reasonably secure, being diversified in stable and comparatively just countries. He did not sufficiently take defensive cover when the corrupt administrators began their legal poking, and did not buy himself the time to organize his legal fight. He left his defenses insufficiently secret, exposing opportunities for exploitation by his adversaries and preventing himself from having the resources of time, money, and freedom to be effective in exposing the falsity of the accusations until after he had been extradited, with no money for legal costs.