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Can I Discuss My Former Employer in a Court Filing? California Lawsuit Addresses Conflict Between Confidentiality Agreement and Anti-SLAPP Motion


Many California employers require their key employees to sign confidentiality or non-disclosure agreements. Such agreements are designed to protect the employer’s confidential trade secrets. So if an employee leaves the employer for a competitor, any disclosure of the employer’s trade secrets could prompt a breach of contract lawsuit against the now-former employee.

Fourth District: No Trade Secret Exception to California’s Anti-SLAPP Statute

But what if the former employee’s disclosure occurs in the context of litigation? A California appeals court recently addressed such a situation. This case, Precise Aerospace Manufacturing, Inc. v. Cantu, involved a plaintiff company that sued its former vice president of sales (the defendant). In 2017, the plaintiff sued the defendant’s former employer in federal court. As part of that lawsuit, the defendant filed a declaration–a written statement made under oath–that the plaintiff claimed disclosed its trade secrets in violation of a confidentiality agreement that the defendant had signed during her employment.

The plaintiff then filed a separate lawsuit in state court, accusing the defendant of breach of contract, misappropriation of trade secrets, and intentional interference with contractual relations. The defendant replied by filing what is known as an anti-SLAPP motion. Essentially, she maintained that her declaration in the federal lawsuit was a “protected activity” under California law, and could not be held liable in state court for what she said.

The California courts agreed with the defendant. The Fourth District Court of Appeal, upholding a Superior Court judge’s prior ruling, noted the “alleged misappropriation of trade secrets” occurred in the defendant’s declaration. And the declaration itself is a protected activity. California’s anti-SLAPP law protects “any written or oral statement or writing made before a … judicial proceeding.” The appeals court noted this would include any statements the defendant made to her former employer’s attorneys in connection with the federal lawsuit outside of the declaration itself.

The plaintiff attempted to argue that its trade secrets claim was “categorically immune from an anti-SLAPP motion” based on a provision of California’s Civil Code, which states that the “litigation privilege” does not apply to trade secret disclosure. But the Fourth District noted this case did not address the litigation privilege. This was an anti-SLAPP claim, which “protects statements in connection with litigation across the board.” Additionally, the court noted that it was not entirely clear the statements made by the defendant in her federal declaration actually contained protected trade secrets–some of the information that she provided “was available on the [the plaintiff’s] own website,” the Fourth District observed.

Get Legal Advice Before Signing a Non-Disclosure Agreement

If you are subject to a confidentiality or non-disclosure agreement, you need to carefully review and understand its terms, especially after leaving your employer for another job. Ideally, before you even sign such an agreement, you should consult with an experienced California employment law attorney who can advise you of the agreement’s contents and warn you of any potential legal exposure. Remember that once you sign on the dotted line, it may be too late to back out.


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* Cathleen Scott is licensed to practice in Florida only.

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