It is common for plaintiffs in employee-related trade secrets and unfair competition cases to allege something of a grab bag of statutory and common law theories. Often, claims of misappropriation of trade secrets, intentional interference with economic advantage, breach of duty, and common law unfair competition will be based on the same set of facts (a departing employee exported a former employer’s confidential, proprietary and trade secret information, or solicited the former employer’s customers on the basis of such information). The number of differing theories is limited only by the facts and the scope of the pleading attorney’s legal imagination.
Over the last decade however, defendants in these cases have begun to attack such pleading by claiming that the California Uniform Trade Secrets Act (“CUTSA”) “preempts” common law provisions which, prior to the passage of CUTSA, would have supported claims based on misappropriation. In K.C. Multimedia, Inc. v. Bank of America Technology and Operations, Inc. (2009) 171 Cal.App.4th 939, the Sixth Appellate District of the Court of Appeal of California held that the CUTSA preempts common law claims that are based on the same nucleus of facts as the misappropriation of trade secrets claim.
Depriving a plaintiff of alternative common law claims can be valuable to a Defendant. Proving a trade secret misappropriation claim can be much more difficult than proving a claim of intentional interference or breach of duty. CUTSA requires a plaintiff to satisfy specific statutory standards...
