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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

AMERICAN FURUKAWA, INC., 

Plaintiff, 

v. 

ISTHIHAR HOSSAIN, 

HT WIRE & CABLE AMERICAS, LLC 

Defendants. 

 / 

Case No. 14-cv-13633 

UNITED STATES DISTRICT COURT JUDGE

GERSHWIN A. DRAIN

UNITED STATES MAGISTRATE JUDGE

STEPHANIE DAWKINS DAVIS

OPINION AND ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 

[119] AND GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION 

FOR SUMMARY JUDGMENT [117] 

I. INTRODUCTION

On September 19, 2014, American Furukawa, Inc. (“Furukawa” or 

“Plaintiff”), filed the instant action against former employee, Isthihar Hossain 

(“Defendant Hossain” or “Hossain”). See Dkt. No. 1. In the Complaint, Furukawa 

alleges eight Counts: (I) violation of the Computer Fraud and Abuse Act 

(“CFAA”), 18 U.S.C. § 1030; (II) Fraud; (III) Breach of Contract; (IV) Breach of 

Fiduciary Duty; (V) Misappropriation of Trade Secrets under MICH. COMP. LAWS §

445.1902; (VI) Conversion; (VII) Tortious Interference; and (VIII) Civil 

Conspiracy. Id. 

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On September 16, 2015, Furukawa amended the Complaint to add another 

Defendant, HT Wire & Cable America, LLC (“HT Wire”). See Dkt. No. 65. On 

October 5, 2015, the Hossain and HT Wire (collectively, “Defendants”) moved to 

dismiss the action and defer to arbitration. See Dkt. No. 79. That Motion was 

denied on November 19, 2015. See Dkt. No. 97. 

Presently before the Court are Plaintiff’s and Defendants’ Motions for 

Summary Judgment. See Dkt. No. 117 & 119. Both Motions have been fully 

briefed. A hearing was held on June 13, 2016 at 2:30 p.m. For the reasons 

discussed below, the Defendants’ Motion [117] is GRANTED IN PART, and 

Plaintiff’s Motion [119] is DENIED. 

II. BACKGROUND

Furukawa is a supplier of advanced automotive technology, electronics and 

specialty products to several high technology industries. Isthihar Hossain accepted 

employment with Furukawa in September, 2011 as a Power Systems Electrical 

Engineer. 

When Hossain began his employment with Furukawa, Furukawa asserts that 

Hossain agreed to abide by several of Furukawa’s Policies, including Furukawa’s 

policy on “Removable Media Use.” Furukawa also asserts that Hossain entered 

into an Invention Assignment & Secrecy Agreement (“Secrecy Agreement”) with 

Furukawa, which dictated that Hossain “will regard and preserve as confidential all 

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trade secrets pertaining to the Company’s business that have been or may be 

obtained by me by reason of my employment.” The Secrecy Agreement also 

dictated that Hossain would not “without prior authority from the company to do 

so, use for [his] own benefit or purposes, nor disclose to others, either during [his] 

employment or thereafter” any trade secrets pertaining to Furukawa’s business. 

By 2014, Hossain had become a Senior Production Manager with access to 

Furukawa’s know-how, intellectual property and other confidential information. 

On March 11, 2014, while he was still employed by Furukawa, Furukawa asserts 

that Hossain entered into an “Employment Agreement” with Heibei Huatong 

Wires & Cables Group Co., Ltd. (“Huatong”)—a competitor and supplier to 

Furukawa. 

On March 17, 2014, Hossain informed Furukawa he was unable to work due 

to a basketball injury. Notably, pursuant to his alleged Agreement with Huatong, 

Hossain was scheduled to begin his employment with Huatong on March 17, 2014. 

As a result of his reported injury, Hossain was granted a leave of absence, 

commencing March 18, 2014. As a condition for granting leave, Furukawa asserts 

that it instructed Hossain that he could not do any work for Furukawa while he was 

away. Despite the instructions to the contrary, Furukawa asserts that Hossain 

accessed information on his company laptop, copied Furukawa files, and sent them 

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from his company email to his personal “gmail” account during his leave of 

absence. 

On March 20, 2014, Huatong announced that it would no longer sell 

Electrical Submersible Pump (“ESP”) cables and photovoltaic (“PV”) cables 

(collectively, the “Cables”) to the United States market, through Furukawa. 

On April 24, 2014, Hossain sent an email to Furukawa’s Manager of Human 

Resources stating that his doctor had cleared him to return to work. On Monday, 

April 28, 2014, Hossain announced that he was resigning his employment, 

effective May 2, 2014. Furukawa accepted Hossain’s resignation, effective April 

29, 2014, and paid him through May 2, 2014. 

Despite his alleged Agreement with Huatong, when he resigned his 

employment, Hossain allegedly indicated he did not “have another job lined up or 

anything,” but his “previous employer” had been contacting him, and he was 

“pretty sure” that he could get a job with them. Upon his departure from Furukawa, 

Hossain was asked to sign an “Employee Certification & Agreement on 

Termination,” certifying that he had returned all property belonging to the 

Company, had complied with the Secrecy Agreement and would continue to abide 

by that Agreement. Hossain allegedly refused to sign. 

On or about May 12, 2014, Furukawa learned that Huatong had approached 

WTEC—one of Furukawa’s customers—about buying cable from Huatong. On 

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May 16, 2014, Furukawa received an email from WTEC regarding WTEC's 

“compound” requirements and “payment terms.” The email from WTEC was 

addressed to Hossain at his former Furukawa email address. On May 30, 2014, 

WTEC confirmed that Hossain was acting as Huatong’s agent with respect to the 

sales negotiations between WTEC and Huatong. On June 5, 2014, Furukawa 

received another email from WTEC, addressed to Hossain’s Furukawa email 

address, purportedly asking Hossain to quote the price for several sets of cables. 

Furukawa sent a letter to Hossain on June 9, 2014, reminding him of his 

obligations under the Secrecy Agreement. In the letter, Furukawa demanded that 

Hossain immediately cease and desist from any further solicitation of cable 

business from WTEC or any other customer of Furukawa. Furukawa also sought 

assurances that Hossain would abide by his trade secret obligations, and would not 

use or disclose any trade secret information that he acquired during his 

employment with Furukawa. Hossain purportedly refused to comply with this 

request. Furukawa attempted to negotiate with Hossain to resolve the dispute. 

Throughout the negotiations, Hossain purportedly maintained that he had returned 

all property belonging to Furukawa and fully complied with the Secrecy 

Agreement. After looking into the actions of Hossain, Furukawa brought the 

instant action pursuant to the CFAA and Michigan law. 

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III. LEGAL STANDARD

Federal Rule of Civil Procedure 56(c) “directs that summary judgment shall 

be granted if there is no genuine issue as to any material fact and that the moving 

party is entitled to a judgment as a matter of law.” Cehrs v. Ne. Ohio Alzheimer’s 

Research Ctr., 155 F.3d 775, 779 (6th Cir. 1998) (quotations omitted). The court 

must view the facts, and draw reasonable inferences from those facts, in the light 

most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 

242, 255 (1986). No genuine dispute of material fact exists where the record “taken 

as a whole could not lead a rational trier of fact to find for the non-moving party.” 

Matsushita Elec. Indus., Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). 

Ultimately, the court evaluates “whether the evidence presents a sufficient 

disagreement to require submission to a jury or whether it is so one-sided that one 

party must prevail as a matter of law.” Anderson, 477 U.S. at 251–52.

IV. DISCUSSION

A. Defendants’ Motion for Summary Judgment 

Defendants attack on Plaintiff’s claims is essentially three-fold. Defendants 

first attack Plaintiff’s claim under the Michigan Uniform Trade Secrets Act 

(“MUTSA”), arguing that the information downloaded by Hossain did not contain 

any trade secrets. Defendants next attack Plaintiff’s claim overall, arguing that 

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Plaintiff has not made a proper request for damages. Finally, Defendants argue that 

Plaintiff’s state-law tort claims are pre-empted by MUTSA. 

a. Plaintiff’s MUTSA Claim

Defendants first move for summary judgment on Plaintiff’s claim under the 

MUTSA. Defendants argue that Plaintiff has failed to establish that the alleged 

data breach involved trade secrets as defined by the statute. 

In order to establish a violation of MUTSA, the plaintiff must show that (1) 

it has protectable trade secrets, and (2) defendant has improperly acquired, 

disclosed or used those trade secrets. Compuware Corp. v. International Business 

Machines Corp., No. 02–70906, 2003 WL 23212863, *6 (E.D. Mich. December 

19, 2003); MICH. COMP. LAWS § 445.1902. The statute defines a “trade secret” as 

“information, including a formula, pattern, compilation, program, device, method, 

or process,” that (1) “[d]erives independent economic value, actual or potential, 

from not being generally known” and (2) “is the subject of efforts that are 

reasonable under the circumstances to maintain its secrecy.” MICH. COMP. LAWS §

445.1902(d); Delphi Automotive PLC v. Absmeier, No. 15-cv-13966, 2016 WL 

787137, *10 (E.D. Mich. March 1, 2016). “Information may be ‘generally known’ 

if it has been disclosed to, is known to, or is ascertainable by persons in the 

relevant industry of field.” Compuware, 2003 WL 23212863 at *6. “A party 

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alleging trade secret misappropriation must particularize and identify the 

purportedly misappropriated trade secrets with specificity.” Id. 

Defendants argue that the product information alleged to have been 

misappropriated was in fact “within the knowledge and control of” Huatong—

parent company to Defendant HT Wire—before Defendant Hossain ever 

downloaded any files. Dkt. No. 117 at 15–18 (Pg. ID No. 2315–18). According to 

Defendants, Huatong gained access to this information via the creation of a Joint 

Venture Agreement with Plaintiff’s parent company. Dkt. No. 117 at 25 (Pg. ID 

No. 2325). Therefore, Defendants argue, the information was generally known, and 

thus cannot be considered trade secrets. The argument is flawed on two levels. 

First, this line of argument has already been rejected by the Supreme Court 

of Michigan. Hayes-Albion v. Kuberski, 421 Mich. 170, 185 (1984) (“First, 

information may qualify as a trade secret although others possess it.”). Therefore, 

without more, Defendants’ argument is insufficient to rule that the allegedly 

misappropriated files were not trade secrets. Id. at 181–182. 

Second, as Plaintiff notes, Defendants have not identified, nor evidenced, 

what information was possessed by Huatong, and if it indeed encompasses all of 

the alleged trade secrets that have been purportedly stolen. Defendants’ argument 

implies that the only trade secrets at issue relate to the technology or 

manufacturing of specific products. Dkt. No. 117 at 18 (Pg. ID No. 2318) (“Here, 

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Defendant’s parent company either developed the products at issue (ESP Cables, 

PV Cables, and Low Voltage Cables) or jointly developed them, and through 

shared technology (MV URD Cables).”). Their argument discounts the fact that 

“customer and supplier contact information, customer requirements, pricing 

information, factory costs and factory capacity”—which may also be trade 

secrets—are also alleged to have been misappropriated. Dkt. No. 125 at 10 (Pg. ID 

No. 3158); Giasson Aerospace Science, Inc. v. RCO Engineering, Inc., 680 F. 

Supp. 2d 830, 844 (E.D. Mich. 2010) (finding that a jury could conclude that 

“vendor product and pricing information” constituted a trade secret.). Therefore, 

there is a dispute of fact as to whether all of the information was even possessed by 

Defendants. Accordingly, Plaintiff’s MUTSA claim survives the Motion. 

b. Plaintiff’s Claim for Damages

Defendants argue that Plaintiff cannot claim damages for materials it has 

never manufactured, and further, that Plaintiff cannot articulate the method by 

which he calculated damages, and thus they are too vague. These arguments 

however are without merit. 

i. Damages for Items Yet to be Manufactured

Plaintiff has alleged damages for: (1) sales and marketing expenses incurred, 

but not recovered due to the loss of business; (2) lost sales; (3) value of the 

information that was misappropriated; and (4) out-of-pocket expenses, including 

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lost time and professional fees. Dkt. No. 125 at 11 (Pg. ID No. 3159). Defendants’ 

Motion, although cryptic, appears to argue that the first two categories, loss of 

business and lost sales, cannot be granted because Plaintiff in fact did not have any 

sales to begin with, nor the capacity to generate sales. Dkt. No. 117 at 19 (Pg. ID 

No. 2319). 

As an initial matter, the latter two categories of damages are not only 

appropriate, but they are also unchallenged by the Defendant. See e.g., MICH.

COMP. LAWS § 445.1904 (“Damages can include both the actual loss caused by 

misappropriation and the unjust enrichment caused by misappropriation that is not 

taken into account in computing actual loss.”). Accordingly, the Motion for 

Summary Judgment cannot be granted on this argument alone. The question then 

becomes whether or not Plaintiff’s claim for damages should be limited on this 

basis. In other words, may Plaintiff recover for the lost profits of an item it did not 

have immediate plans to produce? 

 “Courts have used a wide variety of methods to measure damages in trade 

secret cases, including lost profits, unjust enrichment and reasonable royalty.” 

Pioneer Hi-Bred Intern. v. Holden Foundation Seeds, Inc., 35 F.3d 1226, 1243 (8th 

Cir. 1994). “In order to recover prospective profits, a plaintiff must establish proof 

of lost profits with a reasonable degree of certainty.” Joerger v. Gordon Food 

Service, Inc., 224 Mich. App. 167, 175 (1997). 

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There have been very few, if any, cases involving Michigan trade secret law 

regarding the availability of lost profits as a remedy when the plaintiff has failed to 

establish that it sold certain items. However, other courts have granted summary 

judgment to defendants (and have chosen an alternate means to measure damages) 

when plaintiffs have failed to dispute similar allegations, particularly in patent 

cases. See Kowalski v. Mommy Gina Tuna Resources, 574 F. Supp. 2d 1160, 1163 

(D. Hawai’i 2008); see also Herbert v. Lisle Corp., 99 F.3d 1109, 1119 (Fed. Cir. 

1996) (“When the patentee does not seek to make and sell the invention, lost 

profits are not an appropriate measure of damages.”); Trell v. Marlee Electronics 

Corp., 912 F.2d 1443 (Fed. Cir. 1990) (holding that lost profits were unavailable 

where the patentee did not himself manufacture and sell the device). 

Here, Plaintiff has neither sold, nor has immediate plans to sell ESP cables. 

Dkt. No. 117 (Exhibit D, pp. 46–49). However, contrary to Defendants’ assertions, 

Plaintiff has sold the other materials at issue—PV cables, low voltage cables, and 

MV URD cables. See e.g., id. (Exhibit C, p. 47). Because Plaintiff has engaged in 

the sale of these other products, lost sales/lost profits will not be foreclosed as a 

measure of damages. 

ii. Lack of Methodology for Damages

Next, Defendants argue that Plaintiff has failed to provide a methodology for 

its measure of damages. In support, Defendants primarily point to the deposition of 

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Plaintiff’s witness, Shuichi Takagi. Dkt. No. 117 at 21 (Pg. ID No. 2321). 

Defendants argue that Takagi was “solely responsible creating [sic] the 

calculations and determining the value of the allegedly misappropriated items.” Id. 

Defendants’ entire argument appears to assume that Takagi is acting as 

Plaintiff’s damages expert, and is required to provide Defendants with Plaintiff’s 

damage model. This assumption is misguided. 

Plaintiff intends to present their damages model in the form of expert 

testimony from a separate witness. Dkt. No. 125 at 12 (Pg. ID No. 3160). But at a 

more fundamental level, Defendants’ objection stems from Takagi’s inability to 

recall specific details in his estimates on command. Dkt. No. 117 at 21 (Pg. ID No. 

2321); id. (Exhibit G, pp. 180–90). Critically, at the deposition, Takagi was unable 

to consult his materials when asked questions regarding the reasoning behind his 

valuations. Id. For this reason, Defendants argue that Takagi’s estimates amount to 

nothing more than “speculation.” 

Defendants do not provide any authority supporting the position that a nonexpert witness be required to recite, from memory, every detail of a damages 

estimate. As Plaintiff points out, this objection merely goes to the weight of 

Takagi’s lay-witness valuation of the claims. Dkt. No. 125 at 13 (Pg. ID No. 3161). 

Moreover, the witness himself states in his deposition that his valuations are based 

on his prior experiences evaluating intellectual property. Dkt. No. 125 (Exhibit 8, 

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p. 64). Therefore, they are not based on “speculation” or “conjecture.” 

Accordingly, Defendants are not entitled to summary judgment on this theory 

either. 

c. Tort Claims

Defendants next argue that Plaintiff’s tort claims are displaced by its 

MUTSA claim. Dkt. No. 117 at 26 (Pg. ID No. 2326). Under Michigan Law, a 

claim under MUTSA preempts tort claims when the allegations center exclusively

on the defendant’s misappropriation and unauthorized use of trade secrets. See 

Dura Global Technologies, Inc. v. Magna Donnelly Corp., No. 07–10945, 2009 

WL 3032594, *3 (E.D. Mich. Sept. 18, 2009) (quoting Bliss Clearing Niagara, 

Inc. v. Midwest Brake Bond Co., 270 F. Supp. 2d 943 (W.D. Mich. 2003)). 

“However, MUTSA does not displace . . . ‘[o]ther civil remedies that are not based 

on misappropriation of a trade secret.’ ” Bliss Clearing Niagara, Inc., 270 F. Supp. 

2d at 946. 

Defendants raised this issue in their Motion for Judgment on the Pleadings. 

See Dkt. No. 30. In its May 6, 2015 Opinion and Order, this Court held that 

Plaintiff “[alleged] facts, independent of the MUTSA claim, supporting causes of 

action for Fraud, Breach of Fiduciary Duty, and Conversion.” American 

Furukawa, Inc. v. Hossain, 103 F. Supp. 3d 864, 884 (E.D. Mich. 2015). Here, in 

response to Defendants’ present Motion, Plaintiff points solely to the Court’s prior 

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Opinion. However, that Opinion was issued at the pleadings stage when all 

allegations in the Complaint were taken as true. At the summary judgment stage, 

Furukawa must point to evidence in the record supporting its claims. Furthermore, 

even though there are issues of fact regarding whether the downloaded information 

actually contained trade secrets, prior case law indicates that “the disputed status of 

information as a trade secret does not preclude a court from determining whether a 

claim or claims are displaced by the MUTSA.” Bliss Clearing Niagara, Inc., 270 

F. Supp. 2d at 948–949; see also Easton Sports, Inc. v. Warrior LaCross, Inc., No. 

05–cv–72031, 2005 WL 2234559, *1–3 (E.D. Mich. September 14, 2005). 

MUTSA displaces all common law claims that “are arguably cognizable 

under” MUTSA. Bliss Clearing Niagara, Inc., 250 F. Supp. 2d at 948. Therefore, 

the Court shall look to the record as submitted by both parties to determine 

whether there is evidence of wrongful conduct “independent of the 

misappropriation of trade secrets” that would amount to causes of action for 

Furukawa’s tort claims. Id. at 950 (emphasis added). 

i. Fraud

Furukawa’s fraud claim rests not on Hossain’s misappropriation of 

information, but instead on several representations and omissions made by 

Hossain. See Dkt. No. 119 at 12–17 (Pg. ID No. 2581–86). For example, Furukawa 

alleges Hossain fraudulently represented that he suffered a basketball injury and 

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needed time off on March 17, 2014. Id. at 12 (Pg. ID No. 2581). Furukawa also 

alleges that Hossain’s non-disclosure of his dual employment constitutes fraud. 

This conduct is separate and removed from the misappropriation of confidential 

information. Therefore, this claim will not be displaced. 

ii. Breach of Fiduciary Duty

Under Michigan law, “if an agent acquires any pecuniary advantage to 

himself from third parties by means of his fiduciary character, he is accountable to 

his employer for the profit made.” Central Cartage Co. v. Fewless, 591 N.W.2d 

422, 426 (Mich. App. Ct. 1998). In order to survive MUTSA displacement, a 

plaintiff must show that the breach of fiduciary duty claims rest on “wrongful acts” 

other than the misappropriation of trade secrets. Easton Sports, 2005 WL 2234559 

at *3. 

Plaintiff’s breach of fiduciary duty claim is based not only on the “using and 

disclosing of confidential information,” but also on “entering into an Employment 

Agreement with Huatong while still employed by Furukawa,” and actively 

“diverting business away from Furukawa.” See Dkt. No. 65 at 23 (Pg. ID No. 

1167). 

Hossain does not dispute that he signed an employment agreement with 

Huatong while still under the employ of Furukawa. Moreover, Furukawa has 

brought testimonial evidence that Hossain himself “[pursued] business with 

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American Furukawa customers, both current customers as well as customers that 

he helped to get business with.” Dkt. No. 119 (Exhibit 19, p. 113). Even without 

the alleged misappropriation of confidential information, a reasonable juror could 

find that these facts constitute a breach of Hossain’s duty of loyalty. Therefore, this 

is conduct that is independent of Plaintiff’s alleged trade secret claims. 

Accordingly, this claim will not be displaced. 

iii. Tortious Interference

Similar to breach of fiduciary duty, in order to survive MUTSA preemption, 

a plaintiff must evidence “wrongful acts” other than the misappropriation of trade 

secrets. Easton Sports, 2005 WL 2234559 at *2. As stated above, Furukawa has 

evidenced that Hossain committed a wrongful act by directly interfering with 

Furukawa’s current customers. Accordingly, this claim will not be preempted. 

iv. Civil Conspiracy 

Furukawa’s civil conspiracy claim is also premised on conduct other than 

the misappropriation of trade secrets, including making misrepresentations, and 

directly interfering with Furukawa’s business relationships. Accordingly, this 

claim will not be preempted. 

v. Conversion

Plaintiff’s conversion claim rests solely on Hossain taking possession of 

“various computer files and confidential information.” Dkt. No. 65 at 27 (Pg. ID 

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No. 1172). In this Court’s prior Opinion and Order Denying Defendant’s Motion 

for Judgment on the Pleadings, the Court emphasized that it was alleged that other 

confidential information in addition to the trade secrets had been misappropriated, 

thus allowing the conversion claim to move forward. American Furukawa, Inc., 

103 F. Supp. 3d at 885 n.11. Had Furukawa evidenced the taking of a non-trade 

secret, this conversion claim could move forward. However, Furukawa has failed 

to point to any copied information that is not arguably a trade secret. In fact, at oral 

argument, counsel for Furukawa argued that all of the information taken by 

Hossain may constitute a trade secret. This claim therefore rests solely on the 

misappropriation of potential trade secrets and is pre-empted by MUTSA. Easton 

Sports, 2005 WL 2234559 at *2. 

B. Plaintiff’s Motion for Summary Judgment

Furukawa has moved for summary judgment on all of its asserted claims. 

The Court shall analyze each claim in turn. 

a. Computer Fraud and Abuse 

The Amended Complaint alleges violations of 18 U.S.C. §§ 1030(a)(2) and 

(a)(4), of the CFAA. To prevail on a claim under § 1030(a)(2), Furukawa must 

prove that Hossain: (1) intentionally accessed a computer, (2) without 

authorization or exceeding authorized access, and that he (3) thereby obtained 

information (4) from any protected computer (if the conduct involved an interstate 

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or foreign communication), and that (5) there was loss to one or more persons 

during any one-year period aggregating at least $5,000 in value. See LVRC 

Holdings LLC v. Brekka, 581 F.3d 1127, 1132 (9th Cir. 2009). 

To successfully bring an action for a violation of § 1030(a)(4), Furukawa 

must show that Hossain: (1) accessed a protected computer, (2) without 

authorization or exceeding such authorization that was granted, (3) knowingly and 

with intent to defraud, and thereby (4) “further[ed] the intended fraud and 

obtain[ed] anything of value,” causing (5) a loss to one or more persons during any 

one-year period aggregating at least $5,000 in value. See id. (citing P.C. Yonkers, 

Inc. v. Celebrations the Party and Seasonal Superstore, LLC, 428 F.3d 504, 508 

(3d. Cir. 2005)). Defendants contest both claims, arguing that “Plaintiff has not 

established any damage or loss as defined by the [CFAA].” Dkt. No. 124 at 25 (Pg. 

ID No. 2884). 

Defendants argue that “copying information without more does not state a 

cognizable claim for ‘damage’ under the CFAA, even in situations where a former 

employee is accused of taking information from his former employer and giving it 

to a ‘competitor.’ ” Dkt. No. 124 at 26–27 (Pg. ID No. 2885–86). Furukawa argues 

that it did not suffer “damage,” but instead suffered a “loss” because Furukawa had 

to take remedial measures (in the form of a computer forensic investigation, and 

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attorney fees) in response to Hossain’s copying. Dkt. No. 131 at 7–8 (Pg. ID No. 

3355–56). 

First, under the CFAA, “[a]ny person who suffers damage or loss by reason 

of a violation” may maintain a civil action. 18 U.S.C. § 1030(g) (emphasis added). 

The CFAA defines a “loss” as “any reasonable cost to any victim, including the 

cost of responding to an offense, conducting a damage assessment, and restoring 

the data, program, system, or information to its condition prior to the offense, and 

any revenue lost, cost incurred, or other consequential damages incurred because 

of interruption of service.” 18 U.S.C. § 1030(e)(11). This is separate from the term 

“damage,” which the Act defines as “any impairment to the integrity or availability 

of data, a program, a system, or information.” 18 U.S.C. § 1030(d)(8). Therefore, 

Furukawa’s claim may survive although it appears they do not claim to have 

suffered any “damage” as defined under the Act. 

“Courts have consistently interpreted ‘loss’ . . . to mean a cost of 

investigating or remedying damage to a computer, or a cost incurred because the 

computer’s service was interrupted.” Lasco Foods, Inc. v. Hall and Shaw Sales, 

Marketing & Consulting, LLC, 600 F. Supp. 2d 1045, 1052 (E.D. Mo. 2009) 

(quoting Frees, Inc. v. McMillian, No. 05–1979, 2007 WL 2264457, *3 (W.D. La. 

Aug. 6, 2007)). While some courts find that any response to an offense qualifies as 

a loss, Global Policy Partners, LLC v. Yessin, 686 F. Supp. 2d 642, 651 (E.D. Va. 

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2010), other courts require that any “loss” stem from an “interruption of service.” 

Lasco Foods Inc., 686 F. Supp. 2d at 1052. 

The Sixth Circuit has found that investigations into an offense and the 

conduction of a damage assessment constitute a “loss” as defined by the CFAA; 

interruption of service is not necessary. Yoder & Frey Auctioneers, Inc. v. 

EquipmentFacts, LLC, 774 F.3d 1065, 1074 (6th Cir. 2014) (“Thus . . . it was not 

necessary that Plaintiffs establish that an ‘interruption in service’ occurred.”); Dice 

Corp. v. Bold Technologies, No. 11–13578, 2012 WL 263031, *2 (E.D. Mich. 

January 30, 2012). In this case, upon learning that there was a data breach, 

Furukawa took remedial action to investigate the matter. However, Furukawa has 

not provided the Court with the documents detailing its expenses. Therefore, as of 

now, there is no way to determine whether the response to the offense resulted in 

over $5,000 in expenses. Accordingly, Furukawa has failed to prove a necessary 

element of their claim, and thus summary judgment cannot be granted. 

b. Furukawa’s Fraud Claim 

“As a general rule, actionable fraud consists of the following elements: (1) 

the defendant made a material representation; (2) the representation was false; (3) 

when the defendant made the representation, the defendant knew that it was false, 

or made it recklessly, without knowledge of its truth as a positive assertion; (4) the 

defendant made the representation with the intention that the plaintiff would act 

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upon it; (5) the plaintiff acted in reliance upon it; and (6) the plaintiff suffered 

damage.” M&D, Inc. v. W.B. McConkey, 231 Mich. App. 22, 27 (1998). In the 

current action, Furukawa alleges that Hossain made actionable misrepresentations, 

and also actionable non-disclosures. 

i. Fraudulent Misrepresentations 

Furukawa’s Motion points to three representations made by Hossain. First, 

Furukawa alleges that Hossain “misrepresented his relationship with Huatong, and 

his activities on behalf of Huatong.” Dkt. No. 119 at 24 (Pg. ID No. 2593). This 

“misrepresentation” allegedly occurred when, on March 17, 2014, Hossain told 

Furukawa that he was unable to work due to a basketball injury. Id. at 12 (Pg. ID 

No. 2581). Next, Furukawa alleges that Hossain misrepresented his relationship to 

Huatong again when he resigned. Id. at 24 (Pg. ID No. 2593). This apparently 

occurred twice. Once, in late April or early May of 2014, when Hossain, upon 

resigning, informed Furukawa that “he did not ‘have another job lined up or 

anything . . . . ’ ” Id. at 14 (Pg. ID No. 2583). Then a second time, in June 2014, 

when Hossain allegedly told Furukawa that “he had returned all property 

belonging to [Furukawa], and had fully complied with his Secrecy Agreement.” 

Id. at 17 (Pg. ID No. 2586). 

Hossain does not dispute that he told Furukawa that he suffered a basketball 

injury and needed time off on March 17, 2014. Id. (Exhibit 18, p. 56). However, 

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Hossain testifies that he did indeed need time off because he needed surgery on his 

Achilles tendon. Id.; see Dkt. No. 124 (Exhibit A, ¶ 7). Therefore, there is a 

dispute of fact as to the falsity of this statement. 

Furthermore, Furukawa has failed to demonstrate how it relied on Hossain’s 

next two statements. Furukawa claims that it relied on Hossain’s representations 

by “continuing his employment, continuing his salary and benefits, allowing him 

to have access to confidential information and allowing him to have access to 

customers.” Id. at 24–25 (Pg. ID No. 2593–94). However, the latter two 

statements were only made upon or after Hossain’s resignation. Therefore, it’s not 

clear how Hossain’s employment, benefits, or access to confidential information 

would have been continued, as he was no longer an employee in Furukawa. 

ii. Silent Fraud 

Furukawa also argues that Hossain’s failure to disclose his relationship to 

Huatong at the time he signed the Employment Agreement constituted fraud. Dkt. 

No. 131 at 11 (Pg. ID No. 3359). However, this argument was raised in the 

Plaintiff’s reply brief, and was not included in the Plaintiff’s original Motion for 

Summary Judgment. Therefore, this argument will not be considered on summary 

judgment as Defendants have not had appropriate notice to respond. Scottsdale Ins. 

Co. v. Flowers, 513 F.3d 546, 553 (6th Cir. 2008). 

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Moreover, even if the Court were to consider this argument, Furukawa’s 

claim still fails. The doctrine of “silent fraud” has long been recognized in 

Michigan. See Tompkins v. Hollister, 60 Mich. 470 (1886). However, in order for a 

silent fraud action to exist, the plaintiff must prove that the defendant breached a 

legal or equitable duty of disclose. U.S. Fidelity and Guaranty Co. v. Black, 412 

Mich. 99, 125 (1981); Williston v. Garrow-Loftis Realtors, No. 257647, 2006 WL 

335830, *1 (Mich. Ct. App. February 14, 2006) (“A claim of silent fraud requires 

circumstances that establish a legal duty to make disclosure; mere nondisclosure of 

information is insufficient.”). Furukawa presents no authority for the position that 

such a duty to disclose existed in the present case. 

c. Breach of Contract 

To prevail on a claim for breach of contract, the plaintiff must establish (1) 

the existence of a contract and its terms, (2) performance by the plaintiff, (3) 

breach of the contract by defendant, and (4) damages. Green Leaf Nursery, Inc. v. 

Kmart Corp., 485 F. Supp. 2d 815, 818 (E.D. Mich. 2007). 

Furukawa alleges that Hossain breached Furukawa’s Secrecy Agreement by 

“using and disclosing confidential information,” “taking such information with him 

when he [resigned],” and using it for his own purposes. Dkt. No. 119 at 26 (Pg. ID 

No. 2595). Furukawa also alleges that Hossain violated Furukawa’s policies 

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concerning “Conflicts of Interest,” and “Outside Employment” and “Removable 

Media Use.” Id. 

This Court has already held that “Furukawa’s Breach of Contract claim is 

only premised on the ‘Invention Assignment & Secrecy Agreement . . . and 

impliedly, Furukawa’s Removable Media Policy.” American Furukawa, Inc., 103 

F. Supp. 3d at 885. Therefore, the Court’s analysis of this claim will be limited to 

these two documents. 

i. The Secrecy Agreement 

There is no dispute that the Secrecy Agreement is a valid and enforceable 

contract. Defendants argue that the Secrecy Agreement is not applicable to nontrade secrets, and Plaintiff’s failure to prove the existence of trade-secrets 

precludes summary judgment. Dkt. No. 124 at 28 (Pg. ID No. 2887). 

The relevant provision of the Secrecy Agreement reads: 

I will regard and preserve as confidential all trade secrets pertaining to 

the Company’s business that have been or may be obtained by me by 

reason of my employment. I will not without prior written authority 

from the Company to do so, use for my own benefit or purposes, nor 

disclose to others, either during my employment or thereafter, except 

as required in the course of my employment with the Company and I 

will not take, retain or copy any of the Company’s specifications, 

drawings, blueprints, reproductions, or other documents or items. This 

provision shall not apply after the Company information has been 

voluntarily disclosed by others, or otherwise enters the public domain 

through lawful means. 

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Dkt. No. 119 (Exhibit 6, ¶ 6). Furthermore, the term “trade secrets” is defined in 

the Secrecy Agreement as including, but not limited to: 

all Company information encompassed in all drawings, designs, plans, 

proposals, marketing & sales plans, financial information, costs, 

pricing information, and all concepts or ideas in or reasonably related 

to the business of the Company that have not previously been publicly 

released by duly authorized representatives of the Company. 

Id.(Exhibit 6, ¶ 1). Therefore, the definition of “trade secrets” in the Secrecy 

Agreement is broader than the term’s definition under Michigan law. In the 

contract, the term “trade secret” is merely a proxy for all company information 

“reasonably related to the business of” Furukawa that has not been previously 

released to the public. Id. The Court is bound to enforce the Agreement’s 

unambiguous language. Quality Products and Concepts Co. v. Nagel Precision, 

Inc., 469 Mich. 362, 375 (2003). 

 There is no dispute that Hossain downloaded many of Furukawa’s files onto 

his personal laptop. The act of copying or downloading the files is in violation of 

the Secrecy Agreement’s prohibition of retaining or copying company items. See

Dkt. No. 119 (Exhibit 6, ¶ 6). However, Plaintiff has not proven that it was 

damaged by this violation. Accordingly, the Court will deny Plaintiff summary 

judgment. 

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ii. The Removable Media Use Policy

The parties dispute whether or not the Removable Media Use Policy can be 

enforced as a contract at law. “Not all policy statements will constitute a ‘promise . 

. . .’ ” Lytle v. Malady, 458 Mich. 153, 165 (1998). “[A] ‘policy’ is commonly 

understood to be a flexible framework for operational guidance, not a perpetually 

binding contractual obligation.” Id. at 165 n.11. However, under Michigan law, 

“where an employer chooses to establish such policies and practices and makes 

them known to its employees, the employment relationship is presumably 

enhanced.” Toussaint v. Blue Cross & Blue Shield of Michigan, 208 Mich. 579, 

613 (1980). “The employer has then created a situation ‘instinct with an 

obligation.’ ” Id. And accordingly, “employer statements of policy . . . can give 

rise to contractual rights.” Id. at 614. However, despite the apparent enforceability 

of the policy at contract, summary judgment is still not warranted. 

A plain reading of the policy indicates that employees, authorized to use 

removable media devices such as flash drives or memory sticks, must first gain 

approval from their manager, upper management and the IT department before 

they are allowed to use said devices. Dkt. No. 119 (Exhibit 3). Hossain’s 

deposition testimony indicates that there is uncertainty over whether he in fact 

attached a portable device to his laptop. Id. (Exhibit 18, p. 98). Accordingly, there 

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is a dispute of fact over whether the policy was breached, and Plaintiff is not 

entitled to Summary Judgment. 

d. Breach of Fiduciary Duty 

“Under principles of agency, an agent owes his principal a duty of good 

faith, loyalty, and fair dealing.” H.J. Tucker & Assoc., Inc. v. Allied Chucker & 

Eng’g Co., 234 Mich. App. 550, 595 (1999). These duties prevent an agent from 

acting for himself at the principal’s expense. Nedschroef Detroit Corp. v. Bemas 

Enterprises LLC, 106 F. Supp. 3d 874, 882 (E.D. Mich. 2015) (citing Central 

Cartage Co., 591 N.W.2d at 426). As stated above, under Michigan law, “if an 

agent acquires any pecuniary advantage to himself from third parties by means of 

his fiduciary character, he is accountable to his employer for the profit made.” 

Central Cartage Co., 591 N.W.2d at 426. 

Furukawa argues that Hossain is liable on this count because he entered into 

an employment agreement with Huatong while still working for Furukawa, and 

diverted business away from Furukawa. Dkt. No. 119 at 28 (Pg. ID No. 2597). 

However, Hossain’s testimony disputes that he ever interfered with any Furukawa 

customers. Id. (Exhibit 18, p. 59). Moreover, according to Hossain, he was merely 

making plans to leave Furukawa when he signed his Employment Agreement. Id. 

Merely entering an employment agreement with another company is not enough by 

itself to constitute a breach of a fiduciary duty. Meyers v. Roger J. Sullivan Co., 

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166 Mich. 193, 196 (1911); see also In re Sullivan, 305 B.R. 809, 819 (Bankr. 

W.D. Mich. 2004). Accordingly, Plaintiff is not entitled to summary judgment on 

this claim. 

e. MUTSA 

To prevail under MUTSA, the plaintiff must prove (1) it has protectable 

trade secrets, and (2) the defendant has improperly acquired, disclosed or used 

those trade secrets. Compuware Corp., 2003 WL 23212863 at *6; MICH. COMP.

LAWS § 445.1902. As described above, a trade secret is defined as any 

“information, including a formula, pattern, compilation, program, device, method, 

or process,” that (1) “[d]erives independent economic value, actual or potential, 

from not being generally known” and (2) “is the subject of efforts that are 

reasonable under the circumstances to maintain its secrecy.” MICH. COMP. LAWS §

445.1902(d). 

Defendants argue that Furukawa has failed to specifically identify their trade 

secrets, and provide evidence that the content of the allegedly misappropriated 

documents derive any economic value from not being generally known. Dkt. No. 

124 at 18 (Pg. ID No. 2877). The Court agrees. 

Michigan courts have held that an alleged trade secret must be identified 

“clearly, unambiguously, and with specificity.” Utilase, Inc. v. Williamson, No. 

98–1233, 98–1320, 1999 WL 717969, *6 (6th Cir. September 10, 1999). The 

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identification of alleged trade secrets is important because “the general knowledge 

of an employee does not constitute a trade secret,” Lowry Holding Co., Inc. v. 

Geroco Tech Holding Corp., No. 303694, 2012 WL 1890231, *3 (Mich. Ct. App. 

2012), and the concept of misappropriation of trade secrets “must not compromise 

the right of employees to change jobs.” Degussa Admixtures, Inc. v. Burnett, 277 

F. App’x 530, 535 (6th Cir. 2008). Accordingly, a plaintiff claiming 

misappropriation of trade secrets must “particularize and identify the material that 

it claims qualifies for trade secret protection” and “establish the independent 

economic value of the material.” PrimePay, LLC v. Barnes, No. 14–11838, 2015 

WL 2405702, *24 (E.D. Mich. May 20, 2015). 

In PrimePay, the court found that a plaintiff’s MUTSA claim was unlikely 

to succeed on the merits, in part because the plaintiff did not describe in detail why 

their purported trade secrets were valuable. In that case, financial information was 

allegedly misappropriated from a payroll services company. A witness for the 

plaintiff testified that the information would be of “significant competitive value” 

because it provided a blueprint to competitors. The PrimePay court found this 

unpersuasive. The court reasoned that the “evidence still [fell] short of explaining 

with any degree of clarity how this information, given this particular industry, has 

competitive value from not being generally known to every other payroll services 

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company or how this type of information could be used by a competitor to steal 

customers.” Id.

Here, Furukawa has offered very little evidence demonstrating with any 

degree of clarity how the information at issue has competitive value in the 

advanced technology and electronics industry. Furukawa argues that the copied 

information derives economic value by virtue of the fact that Hossain copied them, 

and the information would give him a “competitive advantage.” Dkt. No. 131 at 4–

7 (Pg. ID No. 3352–55). This argument—it is valuable because he took it—is 

circular. Furukawa has not explained the nature of the information’s value, nor 

how it would give a third party a competitive advantage. Using the analysis 

described in PrimePay, the Court finds that Plaintiff is not entitled to summary 

judgment on this claim. 

f. Conversion 

As explained above, Plaintiff’s Conversion claim has been displaced by 

Plaintiff’s MUTSA claim. Accordingly, Plaintiff is not entitled to summary 

judgment on its conversion claim. 

g. Tortious Interference 

To prevail on a claim for tortious interference with a business expectancy, 

the plaintiff must establish: (1) the existence of a valid business relationship or 

expectancy that is not necessarily predicated on an enforceable contract; (2) 

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knowledge of the relationship or expectancy on the part of the defendant interferer; 

(3) an intentional interference by the defendant inducing or causing a breach or 

termination of the relationship or expectancy, and (4) resulting damage to the 

plaintiff whose relationship or expectancy was disrupted. Health Call of Detroit v. 

Atrium Home & Health Care Services, Inc., 268 Mich. App. 83, 90 (2005). 

As stated above, whether Hossain actually interfered with any of Furukawa’s 

customers (directly or indirectly) is in dispute. Accordingly, summary judgment 

will not be granted on this claim. 

h. Civil Conspiracy 

“A civil conspiracy is a combination of two or more persons, by some 

concerted action, to accomplish a criminal or unlawful purpose, or to accomplish a 

lawful purpose by unlawful means.” Admiral Ins. Co. v. Columbia Cas. Ins. Co., 

194 Mich. App. 300, 313 (1992). Plaintiff has brought no evidence that either 

Huatong or HT Wire engaged in any unlawful conspiracy. Accordingly, 

Furukawa’s motion on this claim is denied. 

V. CONCLUSION

For the reasons discussed above, 

IT IS HEREBY ORDERED, that Defendants’ Motion [117] is 

GRANTED IN PART with respect to Plaintiff’s Conversion Claim (Count VI). 

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IT IS FURTHER ORDERED that the Defendants’ Motion [117] is 

DENIED IN PART with respect to Counts I, II, III, IV, V, VII, and VIII. 

IT IS FURTHER ORDERED that Plaintiff’s Motion for Summary 

Judgment [119] is DENIED on all Counts. 

IT IS SO ORDERED. 

Dated: June 23, 2016 s/Gershwin A. Drain 

 Detroit, Michigan GERSHWIN A. DRAIN 

 United States District Judge 

CERTIFICATE OF SERVICE 

 The undersigned certifies that the foregoing document was served upon 

counsel of record and any unrepresented parties via the Court's ECF System to 

their respective email or First Class U.S. mail addresses disclosed on the Notice of 

Electronic Filing on June 23, 2016. 

 s/Tanya R. Bankston 

 TANYA R.BANKSTON 

 Case Manager & Deputy Clerk 

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