Nonpublic Information and California Tort Law: A Proposal for Harmonizing California’s Employee Mobility and Intellectual Property Regimes Under the Uniform Trade Secrets Act
California courts increasingly face the question whether the Uniform Trade Secrets Act preempts alternative tort claims alleging the misuse of nonpublic information. Analyzing that question requires a detailed analysis of California’s historical treatment of such claims, as well as California’s longstanding public policy in favor of employee mobility. The most important question for UTSA preemption is whether California courts recognize a tort theory for information that the plaintiff deems “confidential but not rising to the level of a trade secret.” Based on an in-depth historical review of hundreds of cases and numerous tort claims, this Article concludes that California law has not and should not recognize such a theory as a means to evade the Uniform Trade Secrets Act. The doctrine of UTSA preemption provides a means to centralize and harmonize California’s rules for nonpublic commercial information and the right of California employees to pursue the jobs of their choosing.