Top Shelf Brands Holdings Corp. (DKTS)

[Carini]

Well, sort of. There's no telling what a Florida state court might do IMO, but on a federal level going after employee confidentiality agreements are all the rage lately.

The SEC's current position is that confidentiality agreements (and other non-disclosure and/or non-disparagement provisions in contracts) are unenforceable to prevent the party subject to them from disclosing confidential information to report a violation of law. It has actually been a primary focus of the SEC in 2014-2015, and it made news when it brought its first enforcement action earlier this year. (http://www.sec.gov/news/pressrelease/2015-54.html) The NLRB and the EEOC have a similar focus, and the SEC has recently been issuing subpoenas to a number of large employers seeking copies of employment agreements with an eye toward bringing large enforcement actions.

FINRA has also taken the position that firms may not include provisions in contracts that impede a person’s right to disclose information to FINRA, the SEC, or any federal or state regulatory
agency regarding a securities law violation. FINRA's October 2014 Regulatory Notice 14-40 (https://www.finra.org/industry/notices/14-40), provides

that it is a violation of FINRA Rule 2010 (Standards of Commercial Honor and Principles of Trade) to include confidentiality provisions in settlement agreements or any other documents, including confidentiality stipulations made during a FINRA arbitration proceeding, that prohibit or restrict a customer or any other person from communicating with the Securities and Exchange Commission (SEC), FINRA, or any federal or state regulatory authority regarding a possible securities law violation.

FINRA's position, with respect to settlement agreements at least, is that not only must settlement agreements allow a party to respond to inquiries from government agencies, but they must also allow individuals to initiate direct communication with those agencies “without restriction or condition.”

In the state courts, as always, it's a mixed bag.

Courts have held that whistleblowers may share their employer’s confidential information if such revelation is required by law or justified by policy. If employers take action against the employee’s disclosure in bad faith, furthermore, they may violate anti-retaliation statutes — compounding rather than containing a company’s problems.

http://www.law360.com/articles/523392/risks-in-fighting-whistleblowers-over-confidentiality

Now, keep in mind that as far as the SEC actions go, they mostly involve regulatory moves against employers for including these types of provisions in their employment and/or settlement agreements. This purportedly violates the new SEC Rule 21F-17 that came in the wake of Dodd-Frank, which prohibits any “person” from taking “any action to impede an individual from communicating directly with the Commission staff about a possible securities law violation, including enforcing, or threatening to enforce” most confidentiality agreements.

So yes, anyone subject to a confidentiality agreement with a public company is probably more than free (i.e., more like "actively encouraged") to disclose the company's confidential information to the SEC and/or any other appropriate regulatory or law enforcement body, and could even be eligible for a whistleblower reward by doing so. But as for how that issue would play out in a breach of contract action between the parties in a state court, I really can't say.