"Social Media and Wealth Management"
10/07/18 By: Leslie A. Fischman Topic: Confidentiality and Social Media Confidentiality applies to “strategic business plans; market and competitive assessments, analyses, studies, profiles, and forecasts.”[1] The purposes for protective orders are to prevent the complication of matters and interests to the privacy of user data and information protected by the FTC.[2] There are plenty of risks associated with the storing and compiling of confidential information” requiring “good cause” on behalf of the party to whom a protective order is granted to prove that “an unacceptable risk of, or opportunity for, "inadvertent disclosure" of that information” presents itself, in the face of exposure.[3] There are issues as to the predictability of disclosure of confidential information, and it is argued that the consequences of disclosure are irreversible, and upon disclosure, a series of repercussions exist that are automatically occurring upon exposure to confidential information, that it cannot be reversed, knowledge of information, and communications resulting from knowledge of such information. Therefore, whether disclosure is inadvertent or purposeful, is the measure by which “careful and sensitive assessment”[4] is taken to determining whether inhouse counsel or outside counsel should be chosen during any “competitive decision-making”[5] process. Why? Because “It is very difficult for the human mind to compartmentalize and so suppress information once learned, no matter how well-intentioned the effort may be to do so.”[6] Employees designated the responsibility of handling confidential information are determined by whether, upon court approval, a confidential order, they are designated to handle “competitively sensitive information.”[7] Upon disclosure of information on social media, one of the factors under assessment by FTC regulations are trade secrets, it is the preference of companies to select employees to whom confidential information is considered understood, and no nuanced opinion of information, would interfere with their ability to protect by court order, knowledge if made so, of information requiring an “intimat[e] familiar[ity] with the processes and formulations” of such confidential information.[8] This applies to not only trade secrets, but also to mergers[9], which may or may not require disclosure of confidential information, to sensitive decision making processes as applied to “antitrust counseling and litigation, mergers and acquisitions, and capital financing.”[10] The only way to protect use of confidential information from social media is to “carve out a special category of Highly Confidential information for them that is not accessible to in-house designees” this is to prevent the sharing of information that cannot be uninfluenced by exposure to information, from spilling out onto social media, and by creating rules for outside counsel to follow, who are not subject to such psychological limitations presented by exposure to confidential information, as they are not the ones sharing or posting on social media, unaffected as inhouse counsel would be, as seen by third parties. Reference: FTC v. Advocate Health Care Network, 162 F. Supp. 3d 666, 2016 U.S. Dist. LEXIS 24788, 2016-1 Trade Reg. Rep. (CCH) P79,519 [1] FTC v. Advocate Health Care Network, 162 F. Supp. 3d 666, 2016 U.S. Dist. LEXIS 24788, 2016-1 Trade Reg. Rep. (CCH) P79,519 [2] FTC v. Advocate Health Care Network, 162 F. Supp. 3d 666, 2016 U.S. Dist. LEXIS 24788, 2016-1 Trade Reg. Rep. (CCH) P79,519 [3] FTC v. Advocate Health Care Network, 162 F. Supp. 3d 666, 2016 U.S. Dist. LEXIS 24788, 2016-1 Trade Reg. Rep. (CCH) P79,519 [4] FTC v. Advocate Health Care Network, 162 F. Supp. 3d 666, 2016 U.S. Dist. LEXIS 24788, 2016-1 Trade Reg. Rep. (CCH) P79,519 [5] FTC v. Advocate Health Care Network, 162 F. Supp. 3d 666, 2016 U.S. Dist. LEXIS 24788, 2016-1 Trade Reg. Rep. (CCH) P79,519 [6] FTC v. Advocate Health Care Network, 162 F. Supp. 3d 666, 2016 U.S. Dist. LEXIS 24788, 2016-1 Trade Reg. Rep. (CCH) P79,519 [7] FTC v. Advocate Health Care Network, 162 F. Supp. 3d 666, 2016 U.S. Dist. LEXIS 24788, 2016-1 Trade Reg. Rep. (CCH) P79,519 [8] FTC v. Advocate Health Care Network, 162 F. Supp. 3d 666, 2016 U.S. Dist. LEXIS 24788, 2016-1 Trade Reg. Rep. (CCH) P79,519 [9] FTC v. Advocate Health Care Network, 162 F. Supp. 3d 666, 2016 U.S. Dist. LEXIS 24788, 2016-1 Trade Reg. Rep. (CCH) P79,519 [10] FTC v. Advocate Health Care Network, 162 F. Supp. 3d 666, 2016 U.S. Dist. LEXIS 24788, 2016-1 Trade Reg. Rep. (CCH) P79,519
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