Choice of law issues permeate trade secret and non-compete cases because employers are nationwide and, employees themselves are extraordinarily mobile. Many decisions begin with a discussion of relevant choice of law issues, but often avoid deciding them by finding that the result would be the same under any of the applicable state laws, which are often similar. Not so with California’s trade secret case law, which differs significantly from other state trade secret laws and has taken a hard line approach against enforcement of common non-compete covenants in employment contracts. In the end, very few cases squarely address the issue: Which law applies where, among the former employer, current employer, and employee, some but not all are California residents? All employers, whether or not they do business in California, should therefore take note of Aspect Software, Inc. v. Barnett, 787 F. Supp.2d 118 (D. Mass. 2011). In Aspect, the Court enforced a Massachusetts non-compete clause against a California resident working for a California company, despite California’s public policy against non-competes and despite case law casting doubt on the existence of a trade secret exception to this policy under California law.
