UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTICT OF MICHIGAN 

SOUTHERN DIVISION 

KONICA MINOLTA BUSINESS 

SOLUTIONS, U.S.A., INC., 

 

 Plaintiff, Case No. 15-11254 

 Honorable Victoria A. Roberts 

v. 

 

LOWERY CORPORATION, d/b/a 

APPLIED IMAGING SYSTEMS, 

INC., et al., 

 

 Defendants. 

_____________________________/ 

ORDER: (1) GRANTING IN PART AND DENYING IN PART 

PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT 

[ECF No. 431]; AND (2) DENYING DEFENDANTS’ MOTIONS 

FOR PARTIAL SUMMARY JUDGMENT [ECF Nos. 430, 432] 

I. INTRODUCTION 

Plaintiff Konica Minolta Business Solutions (“KMBS” or “Konica”) and 

Defendant Applied Imaging Systems (“AI” or “Applied Imaging”) are direct 

competitors in the copier industry. They directly compete in the sale, lease, 

and maintenance of multifunction printing and imaging devices and 

software in Michigan. 

KMBS brings suit against several of its former employees – Steve 

Hurt, Robert Bell, Anna Stewart, Randy Magner, Matt Aron, and Linda 

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Boyle (“Individual Defendants”) – and AI, alleging breach of contract, 

tortious interference with a contractual relationship, misappropriation of 

trade secrets, and civil conspiracy. 

Three motions for partial summary judgment are before the Court. 

- KMBS seeks summary judgment on liability on Count I 

(Breach of Contract), Count II (Tortious Interference), and 

Count IV (misappropriation). [ECF No. 431]. 

- AI moves for summary judgment on the misappropriation 

of trade secrets claim and the type of damages KMBS can 

recover. [ECF No. 432]. 

- The Individual Defendants seek summary judgment on the 

breach of contract and trade secret misappropriation 

claims. [ECF No. 430]. 

As set forth below, the Court: (1) DENIES Defendants’ motions; and 

(2) GRANTS IN PART and DENIES IN PART KMBS’s motion. 

II. BACKGROUND 

Konica has maintained a significant sales presence in the Detroit 

area for years. In early 2011, Applied Imaging decided to expand its 

business into the Detroit market. To that end, it proposed hiring five sales 

employees from KMBS. 

On March 18, 2011, AI hired Steve Hurt to launch its Detroit area 

office; Hurt was Konica’s director of sales for the Detroit area. In the 

months and years that followed, Hurt hired several other KMBS sales and 

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service employees to assist in getting AI’s Detroit office off the ground. 

Many of those employees were subject to an employment agreement which 

precluded them from retaining and/or disclosing KMBS’s confidential 

information, performing certain tasks on behalf of a KMBS competitor in the 

Detroit area, or soliciting certain customers of KMBS. Konica alleges AI 

and Hurt were aware that these former KMBS employees had ongoing 

contractual obligations to KMBS. 

The other Individual Defendants – along with their former KMBS titles 

and their departure dates from KMBS – are: (1) Anna Stewart, Sales 

Representative, August 8, 2012; (2) Randy Magner, Named Account 

Executive, August 13, 2012; (3) Matt Aron, Senior Account Executive, 

March 2013; (4) Linda Boyle, Major Account Executive, March 2013; and 

(5) Robert Bell, Branch Manager, July 12, 2013. 

KMBS alleges the Individual Defendants stole its trade secret and 

other confidential information and brought it with them to Applied Imaging – 

with the full knowledge of AI’s executives. Konica claims that Defendants 

possessed, transmitted, disclosed, and used Konica’s confidential and 

proprietary information obtained by the Individual Defendants during their 

employment with KMBS. Konica says that this information related to every 

aspect of its business in Michigan, including KMBS’s confidential customer 

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list for the entire state of Michigan, sales forecasts, lease and machine 

information, location maps, confidential pricing lists, pricing comparison 

tools, meter readings, customer agreements, prospect lists, compensation 

and quota information, inventory, schematics, configurations, service data, 

proposals, Konica’s custom Excel workbooks, and its sales and service 

contract templates. 

Konica claims that Defendants used the misappropriated trade secret 

information to target and steal Konica’s customers in violation of Michigan 

law and certain Individual Defendants’ contractual obligations. 

Each party moves for partial summary judgment. 

III. STANDARD OF REVIEW

Under Federal Rule of Civil Procedure 56(a), “[t]he Court shall grant 

summary judgment if the movant shows that there is no genuine dispute as 

to any material fact and the movant is entitled to judgment as a matter of 

law.” The movant bears the initial burden to inform the Court of the basis 

for its motion; it must identify particular portions of the record that 

demonstrate the absence of a genuine dispute as to any material fact. 

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant satisfies 

its burden, the non-moving party must set forth specific facts showing a 

genuine issue for trial. Id. at 324. Unsupported, conclusory statements are 

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insufficient to establish a factual dispute to defeat summary judgment, as is 

the “mere existence of a scintilla of evidence in support of the [nonmovant’s] position”; the evidence must be such that a reasonable jury could 

find in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986); 

Alexander v. CareSource, 576 F.3d 551, 560 (6th Cir. 2009). 

In deciding a summary judgment motion, the Court “views the factual 

evidence and draws all reasonable inferences in favor of the nonmoving 

party.” McLean v. 988011 Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000). 

The Court need only consider the cited materials, but it may consider other 

evidence in the record. Fed. R. Civ. P. 56(c)(3). The Court’s function at 

the summary judgment stage “is not to weigh the evidence and determine 

the truth of the matter but to determine whether there is a genuine issue for 

trial.” Liberty Lobby, 477 U.S. at 249. “The standard of review for crossmotions for summary judgment does not differ from the standard applied 

when a motion is filed by only one party to the litigation.” Lee v. City of 

Columbus, 636 F.3d 245, 249 (6th Cir. 2011). However, where the moving 

party seeks summary judgment in its favor on a claim or issue as to which it 

bears the burden of proof at trial, that party’s “showing must be sufficient 

for the court to hold that no reasonable trier of fact could find other than for 

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the moving party.” Calderone v. United States, 799 F.2d 254, 259 (6th Cir. 

1986) (internal quotation marks, citation, and emphasis omitted). 

IV. COUNT I – BREACH OF CONTRACT 

In Count I, KMBS alleges a breach of contract claim against all 

Individual Defendants except Hurt (the “Contract Defendants”). The 

Contract Defendants signed a Confidential Information and Employment 

Agreement (“Agreement”). The Agreement is identical for each person and 

contains confidentiality and non-compete/non-solicitation provisions. 

The Agreement contains a choice of law provision. New York law 

governs this claim. 

To succeed, KMBS must prove: “(1) the existence of an agreement; 

(2) adequate performance of the contract by the plaintiff; (3) breach of 

contract by the defendant; and (4) damages.” Swan Media Grp., Inc. v. 

Staub, 841 F. Supp. 2d 804, 807 (S.D.N.Y. 2012). 

KMBS says the first three elements are easily satisfied and that it is 

entitled to summary judgment on liability on its breach of contract claim. 

The Contract Defendants seek summary judgment as well. They do 

not contest that Konica adequately performed under the Agreement or that 

they violated the terms of Agreement. Rather, they argue that the 

Agreement is unenforceable – such that there can be no breach – because 

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the non-compete and non-solicitation provisions are overbroad, the 

protection given to alleged confidential information is overbroad in both 

scope and duration, and undefined key terms and conflicting language 

render the Agreement ambiguous. 

A. Relevant Terms of the Agreement 

 The Agreement contains an introduction section that defines 

Confidential Information: 

I understand that the term “Confidential Information” as used 

throughout this Agreement refers to confidential and proprietary 

business information of KMBS, including information relating to 

KMBS’ customers, potential customers, suppliers and the 

management of its business. Confidential Information also 

includes, but is not limited to, KMBS’ price lists, customer lists, 

customer records, promotional ideas and strategies, service 

policies and information, sales policies and information, 

marketing policies and information, supplier information, 

territory information, policies and procedures and any other 

information not generally available to the public or treated by 

KMBS as confidential. 

I also understand that KMBS has expended substantial sums 

and effort to develop and protect Confidential Information and 

desires to maintain the confidential status of such Information. I 

understand that in connection with my employment, I may 

become aware of certain Confidential Information owned by 

KMBS, as well as the Confidential Information owned by others 

(including entities related to KMBS), which KMBS is obligated 

to keep confidential. I acknowledge that I have an express 

obligation not to divulge, disclose or use for my own benefit or 

for the benefit of anyone other than KMBS any such information 

during or after my employment by KMBS. 

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Therefore, in consideration of my employment by KMBS and of 

the salary, wages and other consideration paid to me and in 

consideration of the present and future access provided to me 

of Confidential Information, I agree as follows: 

[ECF No. 432-23, PageID.23820]. 

 Section 3 of the Agreement is titled “Non-Disclosure of Confidential 

Information” and provides: 

During my employment by KMBS and at all times after my 

employment by KMBS ends, I will not disclose to anyone 

outside of KMBS or use for my own behalf or on behalf of any 

other person any Confidential Information (which includes 

Confidential Information that KMBS has received from others), 

except upon written consent of KMBS or as required by my 

duties for KMBS and with KMBS’ knowledge. I also will not 

disclose any such Confidential Information to anyone within 

KMBS except to other employees or agents of KMBS who need 

to know such Confidential Information in order to do their jobs 

for KMBS. I acknowledge that no such Confidential Information 

is owned by me, and that all such Confidential Information shall 

remain the exclusive property of the owner thereof (whether or 

not KMBS) and constitutes valuable trade secrets of its owner. I 

will not use the confidential information for my own benefit or 

the benefit of any third party. I will safeguard the confidentiality 

of all Confidential Information by taking all precautions that 

KMBS currently requires or may in the future require and I will 

take any additional precautions that I would take to safeguard 

my own confidential information. 

[ECF No. 432-23, PageID.23821]. 

Sections 6, 8, and 10 of the Agreement address how employees must 

handle KMBS property and confidential information: 

6. Return of KMBS Property. Upon termination of my 

employment with KMBS for any reason, I will return to KMBS 

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all property of KMBS immediately . . . , including, but not 

limited to, all files, databases, records, documents, drawings, 

specifications, lists, equipment and supplies, promotional 

materials and similar items relating to the business of KMBS. 

8. Maintaining Records. I recognize that during the 

course of my employment I am likely to create and maintain 

certain records of my activities which contain Confidential 

Information and I recognize that all such records are the 

exclusive property of KMBS. I will keep and maintain adequate 

and current records of all such Confidential Information in the 

manner and form requested by KMBS. I further agree that all 

such records shall be the exclusive property of KMBS, shall not 

be copied and/or removed by me except for KMBS business 

and shall be made available to KMBS at all times. When my 

employment by KMBS ends for any reason, I will return to 

KMBS all books, records or notes containing the names and 

addresses of any customers of KMBS, all duplicate invoices 

and statements pertaining to such customers, and all other 

information, documents and writings of any nature whatsoever 

relative to the business of KMBS, and any other information of 

a confidential or secret nature applicable to KMBS’ business, 

its customers and the manner of conducting its business. I will 

not keep in my possession or control any copies of any of 

KMBS’ records, correspondence or written material of any kind 

after my employment with KMBS ends. 

10. KMBS Policies. In addition to complying with the terms 

and conditions of this Agreement, I also will abide by and 

comply with any and all existing and future KMBS policies and 

procedures relating to Confidential Information. 

[ECF No. 432-23, PageID.23821-23]. 

 Section 9 of the Agreement sets forth non-compete and nonsolicitation provisions: 

a. To the maximum extent permitted by applicable law, 

for a period of one year after my employment with KMBS ends 

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(or for a period equal to the length of my employment with 

KMBS, if shorter), I will not: (i) call on or communicate with any 

customer or prospective customer of KMBS with whom I have 

dealt or whose identity I have learned while employed by 

KMBS; or (ii) directly or indirectly, render services in the 

geographic territory where I performed my duties for KMBS if 

my services would relate to the development, manufacture, 

marketing, sales, merchandising, promotion or maintenance of 

any products or processes which are similar to, or compete with 

products or processes offered by KMBS. 

b. The period of one year (or shorter period equal to 

the length of my employment) referred to in the preceding 

paragraph shall be extended for a period equal to the duration 

of any breach of my obligation if I breach any obligation 

imposed by this section 9. 

[Id., PageID.23822]. 

Finally, Section 17 of the Agreement provides that it “is the final, 

complete and exclusive agreement between KMBS and [the employee] 

with respect to the subject matter” and that the employee and KMBS are 

not “bound by any prior or collateral statements, warranties, 

representations, agreements, arrangements or course of dealings between 

them.” [Id., PageID.23824]. 

B. Breach of Contract Claims Under New York Law 

Under New York law, “‘negative covenants restricting competition are 

enforceable only to the extent that they satisfy [an] overriding requirement 

of reasonableness.’” Johnson Controls, Inc. v. A.P.T. Critical Sys., Inc., 

323 F. Supp. 2d 525, 533 (S.D.N.Y. 2004) (quoting Reed, Roberts Assocs., 

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Inc. v. Strauman, 40 N.Y.2d 303, 307 (1976)). In determining whether a 

“restrictive covenant is reasonable, and thus enforceable, courts applying 

New York law typically employ the three-factor reasonableness test set 

forth in BDO Seidman v. Hirshberg, 93 N.Y.2d 382 [] (1999).” Oliver 

Wyman, Inc. v. Eielson, 282 F. Supp. 3d 684, 694 (S.D.N.Y. 2017). Under 

this test, a restrictive covenant is reasonable “only if it: (1) is no greater 

than is required for the protection of the legitimate interest of the employer, 

(2) does not impose undue hardship on the employee, and (3) is not 

injurious to the public.” BDO Seidman, 93 N.Y.2d at 388-89 (emphasis 

omitted); see also Johnson Controls, 323 F. Supp. 2d at 533 (courts will 

enforce a restrictive covenant only “to the extent that it is reasonable in 

time and area, necessary to protect the employer’s legitimate interests, not 

harmful to the general public and not unreasonably burdensome to the 

employee”). 

In applying this standard, the Court must focus on the particular facts 

and circumstances surrounding the agreement. Estee Lauder Companies 

Inc. v. Batra, 430 F. Supp. 2d 158, 179-80 (S.D.N.Y. 2006). “[T]here are no 

per se lines demarcating what constitutes an unreasonable durational or 

geographic scope.” Id. at 180. 

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Moreover, the Court “need not employ an all or nothing approach to 

the enforcement of employee restrictive covenants.” Estee Lauder, 430 F. 

Supp. 2d at 180. Under New York law, courts may sever and grant partial 

enforcement of an overbroad restrictive covenant. Id. 

Indeed, “[w]here courts find restrictions to be unreasonable, . . . they 

may ‘blue pencil the covenant to restrict the term to a reasonable limitation, 

and grant partial enforcement for the overly broad restrictive covenant.’” 

Poller v. BioScrip, Inc., 974 F. Supp. 2d 204, 221 (S.D.N.Y. 2013) (citation 

omitted). “[P]artial enforcement, as opposed to invalidating the entire 

covenant, is justified” absent “overreaching, coercive use of dominant 

bargaining power, or other anti-competitive misconduct.” Johnson 

Controls, 323 F. Supp. 2d at 540 (citing BDO Seidman, 93 N.Y.2d at 394). 

Importantly, in cases like this, where a party argues that an entire 

restrictive covenant or agreement is invalid because certain parts are 

overbroad, the Court can partially enforce the restrictive covenant and 

grant summary judgment, declaring that the restrictive covenant and 

agreement are valid and enforceable as modified (i.e., as partially 

enforced). See BDO Seidman, 93 N.Y.2d at 394, 397 (ordering the lower 

court to modify its decision by “granting plaintiff's motion for partial 

summary judgment declaring the restrictive covenant enforceable as here 

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provided,” and explaining that the lower court erred in holding that the 

entire covenant must be invalidated, and in declining partially to enforce the 

covenant to the extent necessary to protect BDO’s legitimate interest”); 

Poller, 974 F. Supp. 2d at 221-22, 225 (denying employee’s summary 

judgment argument that an overbroad non-solicitation provision made the 

entire agreement unenforceable, and granting partial enforcement of the 

non-solicitation provision “limited to those clients that [the employee] 

developed during her employment with [employer]”). 

Contract Defendants make numerous arguments regarding why the 

Agreement is unenforceable. For sake of clarity, it is easiest to break their 

arguments into three categories: (1) the noncompete and non-solicitation 

provisions are overbroad; (2) the scope and duration of the non-disclosure 

of confidential information provision and the protection given to alleged 

confidential information is overbroad; and (3) the Agreement is ambiguous 

because key terms are missing and certain provisions conflict with one 

another. 

1. Breadth of Non-Compete and Non-Solicitation 

Provisions 

The Contract Defendants first argue that the duration and/or scope of 

the non-compete and non-solicitation provisions are overbroad and 

unreasonable because, among other things: (1) in addition to a one-year 

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duration, the other terms of the Agreement place strict limitations on 

communication with and access to KMBS clients; (2) the duration is not 

equally imposed on all KMBS employees; (3) the Agreement prohibits 

solicitation of former, non-current, customers; (4) the language of the 

Agreement could prohibit a former employee from competing in a 

geographic area where that employee’s sole contact with the area was as 

superficial and trivial as dropping off lunch at a meeting at the request of a 

supervisor; and (5) the provisions prohibit solicitation of prospective or 

potential customers as well as Konica customers with whom the former 

employee had no relationship. 

KMBS argues that the non-compete and non-solicitation provisions 

are reasonable and necessary to protect its legitimate interests and are 

neither unreasonably burdensome to the Contract Defendants nor harmful 

to the public. 

a. The Non-Compete and Non-Solicitation 

Provisions are Reasonable in Duration and 

Geographic Scope

The Court finds that the Agreement’s non-compete and nonsolicitation provisions are reasonable in time and geographic scope. See

Crown IT Servs., Inc. v. Koval-Olsen, 11 A.D.3d 263, 264 (N.Y. App. Div. 

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1st Dep’t 2004) (finding a restrictive covenant reasonable in time and area; 

it prohibited defendant from servicing plaintiff’s clients for one year in same 

area where prior service was provided). 

New York courts consistently hold that one-year non-compete and 

non-solicitation provisions are reasonable. See Reed Elsevier Inc. v. 

Transunion Holding Co., No. 13 Civ. 8739, 2014 WL 97317, at *8 (S.D.N.Y 

Jan. 9, 2014). They also routinely find restrictive covenants to be 

reasonable where they are limited in geographic scope to where the 

employee performed services for his or her former employer. See, e.g., 

Poller, 974 F. Supp. 2d at 220-21 (finding non-compete provision that was 

limited to employee’s sales territory reasonable in geographic scope). 

Particularly, the limited duration and geographic scope of the noncompete and non-solicitation provisions are reasonable because KMBS 

establishes that the provisions are necessary to protect against the 

disclosure or use of KMBS’s trade secrets and confidential customer 

information and to protect client relationships developed by employees at 

KMBS’s expense. New York law recognizes these as legitimate business 

interests worth safeguarding. See Estee Lauder, 430 F. Supp. 2d at 177 

(citation omitted); Poller, 974 F. Supp. 2d at 215-16. 

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Indisputably, employees in the printing and copying industry 

commonly change employers, making the use of restrictive covenants 

necessary to protect employers’ legitimate business interests. Without 

them, employers would not be able to protect their proprietary information 

or the goodwill established through customer relationships. Indeed, even 

AI recognizes the need to protect customer relationships developed by 

employees; it utilizes restrictive covenant agreements to protect those 

interests. [See ECF No. 434-13, PageID.26999]. 

KMBS also establishes that the Contract Defendants expressly 

targeted KMBS customers with whom they had developed a significant 

client relationship while at KMBS; they used existing relationships to divert 

business away from KMBS – further demonstrating KMBS’s need for 

restrictive covenants in the Agreement. 

The Contract Defendants argue that the non-compete and nonsolicitation provisions are overbroad in several respects. They say the 

duration of the non-compete and non-solicitation provisions is overbroad 

and untenable because KMBS does not apply the same duration to all 

former employees. For employees who worked for KMBS for less than one 

year, the duration is equal to the employee’s term of employment; for 

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employees who worked for KMBS for one year or longer, the duration is 

one year. 

This argument is baseless. For it, the Contract Defendants rely on 

Estee Lauder. There, the employer had a practice of reducing the noncompete periods of other comparable employees. See Estee Lauder, 430 

F. Supp. 2d at 181-82. Here, there are only two groups of employees. 

The first encompasses those who worked for KMBS for less than one year. 

The duration of their non-compete and non-solicitation provision equals the 

length of their employment. The other group encompasses employees who 

worked for KMBS for more than one year. This group captures employees 

like Contract Defendants; they all worked for KMBS for between nine and 

twenty-five years. These two groups are not similarly situated, and Estee 

Lauder is inapplicable. 

Similarly baseless is Contract Defendants’ argument that “[t]he 

Agreement ... is void for overbreadth where it prohibits former KMBS 

employees from ‘directly or indirectly rendering services’ in any 

geographical territory in which they ‘performed duties’ while at KMBS.” 

[ECF No. 430, PageID.23349]. This argument relies on the Contract 

Defendants’ erroneous misstatement and then interpretation of “performed 

duties.” 

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Contrary to Contract Defendants’ argument, the Agreement does not 

say “performed duties”; it says “performed my duties.” This distinction is 

important. As KMBS points out, “[i]t is axiomatic that a contract is to be 

interpreted so as to give effect to the intention of the parties as expressed 

in the unequivocal language employed.” See Johnson Controls, 323 F. 

Supp. 2d at 539. The use of the modifier “my” before “duties” – as opposed 

to an unlimited modifier, such as “any,” or no modifier at all – demonstrates 

a restriction to the types of duties being referenced. In this context, the 

unequivocal language “my duties” could only mean the employee’s 

principal or primary employment duties. 

Under the plain meaning of the Agreement, the Contract Defendants 

argument fails. A KMBS sales representative who merely picked up lunch 

one time in an area outside her sales territory, where she had never 

conducted business, would not be performing her primary duties in that 

location; thus, the Agreement would not prohibit her from working in that 

area after leaving KMBS. It is the Contract Defendants’ own misstatement 

and expansive reading of the Agreement which causes them to make this 

flawed overbreadth argument. 

The Contract Defendants next argue that the Agreement is overbroad 

and it unduly burdens former employees because it: (1) applies to KMBS’s 

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former customers; and (2) prohibits former KMBS employees “years after 

the fact, potentially forever” from contacting current KMBS customers with 

whom they once had a relationship. 

Both aspects of this argument misinterpret the Agreement. First, as 

KMBS acknowledges, the Agreement only applies to its current and 

prospective customers, not former customers. 

Second, the Agreement explicitly limits the duration of the nonsolicitation and non-compete period to one year after the end of 

employment with KMBS; thus, it does not prohibit former KMBS employees 

from contacting current KMBS customers for “years after the fact, 

potentially forever.” 

After the one-year period, the Contract Defendants could work for AI 

in the same location as they served KMBS and they could compete with 

KMBS with respect to its customers. Alternatively, during the one-year 

restricted period, the Agreement allows the Contract Defendants to work for 

AI in a different geographic area than where they performed services for 

KMBS or in the same area if the products and services they are selling do 

not compete with KMBS. The Agreement only prohibits the Contract 

Defendants from working both in the same geographic area and the same 

industry as KMBS for one year. Indeed, even during the restricted period, 

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the Agreement allows the Contract Defendants to utilize their sales skills 

and earn a livelihood. 

Moreover, although the Agreement temporarily prohibits the Contract 

Defendants from providing competing services in the eastern Michigan 

market, Applied Imaging is free to compete with KMBS in the market as 

long as the Contract Defendants are not involved during the one-year 

period. 

The Agreement does not impose an undue hardship on, or 

unreasonably burden, the Contract Defendants. See Poller, 974 F. Supp. 

2d at 220. 

In addition, several other printing and copying companies compete in 

this market, ensuring that the public’s freedom of choice is not impaired. 

Thus, the Agreement is not harmful to the public. See Johnson Controls, 

323 F. Supp. 2d at 538. 

b. Partial Enforcement of Three Aspects of the 

Non-Solicitation Provision

While the Court finds that the non-compete and non-solicitation 

provisions of the Agreement are reasonable in duration and geographic 

scope, the Contract Defendants demonstrate that certain aspects of the 

non-solicitation portion of the Agreement are overbroad and unnecessary. 

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This showing, however, does not make the Agreement unenforceable due 

to overbreadth. Instead, the Court has the power to partially enforce it. 

Partial enforcement is justified because the evidence demonstrates 

that KMBS “has in good faith sought to protect [] legitimate business 

interest[s]” and did not engage in “coercive use of dominant bargaining 

power, or other anti-competitive misconduct.” See BDO Seidman, 93 

N.Y.2d at 394; Poller, 974 F. Supp. 2d at 221-22, 225 (exercising authority 

to partially enforce restrictive covenant on cross-motions for summary 

judgment, and deeming restrictive covenant enforceable “as modified by 

the Court”). 

First, the Court agrees with the Contract Defendants that the 

Agreement is overly broad to the extent it prohibits solicitation of 

prospective or potential customers of KMBS. The case law is clear that 

“protection of client relationships” does not justify prohibiting former 

employees from soliciting potential or prospective customers: 

The protection of client relationships does not justify 

enforcement of the portions of the non-compete clauses 

relating to potential clients of the employer who are merely 

solicited [by or] at the direction of [defendants]. An employer 

does not forge a protectable client relationship with a 

prospective customer simply by sending the company a 

business proposal or making a pitch for its business in a sales 

meeting. And if the law were to provide otherwise, it would be 

difficult, if not impossible, to draw the appropriate line for how 

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much contact the employee must have had with a prospective 

customer to establish a protectable client relationship. 

Mercer Health & Benefits LLC v. DiGregorio, 307 F. Supp. 3d 326, 350 

(S.D.N.Y. 2018) (internal citations and quotation marks omitted). 

KMBS does not argue that “protection of client relationships” justifies 

the part of the Agreement which prohibits the solicitation of its prospective 

customers. Rather, KMBS relies on Johnson Controls and Marsh – each of 

which refused to enforce the part of a restrictive covenant prohibiting 

former employees from soliciting prospective customers of their former 

employer – for the proposition that such restrictions are permitted “to 

protect trade secrets and confidential information.” See Johnson Controls, 

323 F. Supp. 2d at 540; Marsh USA Inc. v. Karasaki, No. 08 CIV. 4195, 

2008 WL 4778239, at *18 (S.D.N.Y. Oct. 31, 2008). 

Although both of those cases refused to enforce the “prospective 

customers” part of the non-solicitation clause – and neither case cites to 

additional authority supporting its finding – KMBS decided not to provide 

the Court with any case where such a provision was actually enforced. 

Nevertheless, the Court need not resolve the parties’ dispute regarding the 

controlling law. 

KMBS’s only justification for this restriction is to protect its trade 

secrets and confidential information. However, such a restriction is not 

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necessary where the Agreement contains a broader provision that prohibits 

the Contract Defendants from using or disclosing confidential information 

and trade secrets at any point following their separation from KMBS. 

Because the non-disclosure of confidential information portion of the 

Agreement makes the non-solicitation of potential KMBS customers 

provision unnecessary, the Court will not enforce the non-solicitation of 

potential customers provision. See Johnson Controls, 323 F. Supp. 2d at 

540 (“negative covenants restricting competition are enforceable only to the 

extent that they satisfy the overriding requirement of reasonableness”). 

The Court also finds that the non-solicitation provision is overbroad to 

the extent it applies to those KMBS customers with whom the Contract 

Defendants had no relationship. Under New York law, KMBS has no 

legitimate interest to prohibit former employees from soliciting KMBS 

customers with whom the former employee had no relationship. See 

Poller, 974 F. Supp. 2d at 216-17, 221. 

 The Court exercises its authority to grant partial enforcement of the 

provision and severs the phrase “or whose identity I have learned” from the 

non-solicitation provision. See id. In so doing, the Court limits enforcement 

of the non-solicitation provision to KMBS’s customers “with whom [the 

Contract Defendants] have dealt while employed by KMBS” – i.e., those 

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customers with whom a former employee had some relationship while at 

KMBS. As the Contract Defendants acknowledge, numerous cases deem 

similar one-year non-solicitation provisions with such a limitation to be 

reasonable. [See ECF No. 439, PageID.28414]. See, e.g., Johnson 

Controls, 323 F. Supp. 2d at 529-30, 536; Marsh, 2008 WL 4778239, at *3. 

Finally, the Court exercises its authority to “blue pencil the covenant” 

with respect to the Agreement’s use of the term “or communicate with” in 

the non-solicitation provision. 

The Contract Defendants contend that the language “communicate 

with” makes the non-solicitation provision overly broad because it deems 

any communication – including those unrelated to the service or sale of 

copier products – improper solicitation. Thus, they say the Agreement 

even prohibits a former employee’s “get-together with former clients who 

are also personal friends,” as well as where a former KMBS employee 

answers an unsolicited call from a disgruntled KMBS customer and says 

only that she left KMBS and she is unable to talk because she is subject to 

a non-compete agreement. 

While this clearly is not the type of conduct KMBS seeks to prohibit – 

and KMBS makes no such frivolous claims – out of an abundance of 

caution, the Court severs the term “or communicate with” from the 

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Agreement’s non-solicitation provision and grants partial enforcement of 

the provision as it remains. The remaining portion of the non-solicitation 

provision still adequately protects KMBS’s legitimate interests; it prohibits 

former employees from calling on customers with whom they dealt while 

employed by KMBS. 

With this language excised, the Court finds the non-solicitation and 

non-compete provisions of the Agreement to be reasonable in time and 

geographic scope, necessary to protect KMBS’s legitimate interests, not 

unduly burdensome to the Contract Defendants or harmful to the public, 

and enforceable. 

2. Duration of Non-Disclosure of Confidential 

Information Provisions 

The Contract Defendants next argue that the scope and duration of 

the non-disclosure of confidential information provisions are overly broad 

because they: (1) require former KMBS employees to take all precautions 

that KMBS “currently requires or may in the future require”; (2) would allow 

KMBS to shield publicly available information from use by designating it as 

confidential; and (3) prohibit former KMBS employees from disclosing or 

using confidential information “at all times after [their] employment [with] 

KMBS ends.” These arguments fail. 

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KMBS appropriately points out that the Contract Defendants’ first 

argument is misleading. If the Contract Defendants had returned all 

confidential information to Konica when they left KMBS employment, there 

would be no need to be concerned with, or stay abreast of, future policies 

on maintenance of information. Thus, this requirement does not make the 

non-disclosure provisions overbroad. 

The Contract Defendants’ second argument is also misleading and 

wrong. The Agreement’s definition of confidential information excludes 

information “generally available to the public.” Thus, KMBS cannot shield 

publicly available information by designating it confidential. 

Finally, the open-ended nature of the non-disclosure of confidential 

information provision does not by itself mean the restriction is overly broad 

or unenforceable. KMBS says the Agreement’s non-disclosure of 

confidential information provision “is justified by the need to protect [its] 

trade secrets and confidential information.” See Johnson Controls, 323 F. 

Supp. 2d at 540. The Court agrees with KMBS. 

Restrictive covenants aimed at protecting against misappropriation of 

an employer’s trade secrets or confidential customer information are 

“enforceable to the extent necessary to prevent the disclosure or use of 

[such information].” Ashland Mgmt. Inc. v. Altair Investments NA, LLC, 59 

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A.D.3d 97, 102 (N.Y. App. Div. 1st Dep’t 2008). “[T]he mere fact that ... 

confidentiality agreements [are] not limited in duration does not necessarily 

make them ipso facto unenforceable.” Id. at 104. Indeed, “[p]rotecting 

trade secrets and truly confidential information . . . does not have to be time 

limited in every instance where the covenant does not otherwise prevent a 

former employee from pursuing his or her livelihood or interfere with 

competition.” Id. 

 Like Ashland, the non-disclosure of confidential information provision 

“do[es] not perpetually restrict defendants from working for someone else 

or in a similar business. . . .Rather, the [A]greement[] at issue merely 

attempt[s] to prevent defendants from unfairly using plaintiff's trade secrets 

[and confidential information].” See Ashland, 59 A.D.3d at 105 n.2. 

Particularly, as discussed above, the Agreement does not prohibit the 

Contract Defendants from using publicly available information related to 

KMBS’s customers and business. There is no reason to believe the 

restrictive covenant would unreasonably prevent the Contract Defendants 

from pursuing their livelihood or from fairly competing with KMBS after the 

one-year non-compete and non-solicitation restrictions expire. 

The Court finds that the non-disclosure of confidential information 

portion of the Agreement is not overly broad. See id. at 105. 

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3. The Agreement is Not Ambiguous

The Contract Defendants’ third and final argument is that the 

Agreement is ambiguous and unenforceable because – despite requiring 

its signatories to take “all precautions KMBS currently requires,” to keep 

confidential information “in the manner and form requested by KMBS,” and 

to be bound by “the attached definitions” – the terms “manner and form” 

and “precautions required” are undefined and there are no attached 

definitions. 

Contract Defendants also say the Agreement is ambiguous because 

the requirement that employees abide by “any and all existing and future 

KMBS policies and procedures relating to Confidential Information” in 

Section 10 of the Agreement “is countermanded in Section 18 [sic], which 

states the Agreement is ‘the final, complete and exclusive agreement 

between KMBS and [employee] with respect to the subject matter hereof,’ 

and that neither the employee nor KMBS are bound by ‘any prior or 

collateral statements, warranties, representations, agreements, 

arrangements or course of dealings between them.’” The Contract 

Defendants mistakenly say the merger clause is in Section 18; it actually is 

in Section 17. 

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 Contract Defendants made the same argument regarding the lack of 

attached definitions in its motion for judgment on the pleadings. The Court 

found that their argument failed because they did not demonstrate that the 

Agreement was so vague or indefinite so as to make it impossible to 

determine whether a breach occurred. See Swan Media, 841 F. Supp. 2d 

at 808. This continues to be true. 

As KMBS says, the key non-disclosure of confidential information 

provisions of the Agreement are unambiguous and demonstrate that the 

Contract Defendants entered into an agreement. Additionally, there are no 

essential terms missing that would preclude a determination concerning 

breach by the Contract Defendants. Indeed, KMBS does not allege that 

the Contract Defendants violated some unidentified policy concerning 

confidential information. KMBS alleges the Contract Defendants breached 

the unambiguous provisions regarding return of property, non-disclosure of 

confidential information, and non-competition and non-solicitation. 

Because Contract Defendants fail to show that an essential term is 

undefined, the Agreement is not unenforceable due to ambiguity. See

Kowalchuk v. Stroup, 61 A.D.3d 118, 121 (N.Y. App. Div. 1st Dep’t 2009) 

(“[M]eeting of the minds must include agreement on all essential terms.”). 

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Moreover, while it is unnecessary to determine whether Section 10 of 

the Agreement is inconsistent with Section 17’s general merger clause, 

even if there is an inconsistency between the provisions, it would not 

render the Agreement unenforceable because: (1) the parties agreed on 

the essential terms of the Agreement; and (2) the more specific provision 

relating to the applicability of KMBS’s policies and procedures would 

govern over the general merger clause based on the “well-established 

principle of contract interpretation that specific provisions concerning an 

issue are controlling over general provisions,” see Huen New York, Inc. v. 

Bd. of Educ. Clinton Cent. Sch. Dist., 67 A.D.3d 1337, 1338 (N.Y. App. Div. 

4th Dep’t 2009). 

4. The Agreement is Valid and Enforceable

Except as modified with respect to the three aspects of the nonsolicitation provision, the Agreement is valid and enforceable. 

The Contract Defendants are not entitled to summary judgment on 

their argument that the Agreement is unenforceable as a matter of law due 

to overbreadth. 

KMBS is entitled to partial summary judgment declaring the 

Agreement partially enforceable, as set forth (i.e., modified) above. 

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Additionally, as explained further below, because KMBS establishes 

each of the remaining elements of its breach of contract claim, other than 

with respect to the precise amount of damages it suffered, and shows that 

there is no genuine dispute as to any material fact, KMBS is entitled to 

summary judgment as to liability on their breach of contract claim against 

the Contract Defendants. 

C. KMBS Performed Under the Agreement 

KMBS establishes the second element of its breach of contract claim 

– i.e., that it adequately performed under the Agreement. See Swan 

Media, 841 F. Supp. 2d at 807. 

The Contract Defendants do not dispute this element. 

D. The Contract Defendants Breached the Agreement 

 The third element of its breach of contract claim requires KMBS to 

establish that the Contract Defendants breached the Agreement. Id. A 

single instance of breach is sufficient for KMBS to satisfy this element. 

KMBS more than satisfies this element. 

Among other things, by signing the Agreement, each of the Contract 

Defendants agreed that for one year after their employment with KMBS 

ended, they would: (1) not call on any customer of KMBS with whom they 

dealt while employed by KMBS; and (2) not, directly or indirectly, render 

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services in the geographic territory where they performed their duties for 

KMBS (i.e., the eastern Michigan area) if those services would compete 

with products or processes offered by KMBS. Additionally, the Contract 

Defendants agreed to return to KMBS at the end of their employment all 

KMBS property, including documents, records, and materials related to 

KMBS’s business and/or customers.

KMBS sets forth undisputed evidence demonstrating that each of the 

Contract Defendants breached at least one or more of the above provisions 

of the Agreement. 

 1. Matt Aron 

KMBS shows that Matt Aron resigned from his Senior Account 

Executive position at KMBS’s Troy, Michigan branch on March 1, 2013. He 

began working for AI three days later as a Major Account Executive. 

There, Aron handled single machine placement business in the Detroit area 

– the same area he worked for KMBS. He sold competing printing and 

imaging products and services to customers in the same geographic area, 

in direct violation of the Agreement. 

Aron also violated the Agreement by soliciting KMBS customers in 

March, April and May 2013. For example, on March 26, 2013, Aron began 

communicating with Advanced Assembly Products, Inc., a KMBS customer, 

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regarding their KMBS contracts, and by April 11, 2013, Aron had scheduled 

a meeting with the customer to discuss their “Konica Minolta Exit Proposal.” 

In an email exchange spanning from the end of April 2013 to the 

beginning of May 2013, Aron solicited the business of a different KMBS 

customer, even promising that “Applied will make all [KMBS] lease 

payments thru and including the December payment and return the Konica 

[equipment] to them (KMBS) as well.” [ECF No. 433-40, PageID.26229]. 

On May 23, 2013, Aron emailed Presbytery of Detroit, a KMBS 

customer with whom he had worked while at KMBS, attaching a price 

proposal on behalf of AI and a statement promising to pay off the 

remainder of its lease with KMBS. 

While Aron attempts to dispute some of these allegations, he 

explicitly admits the final allegation regarding his solicitation of Presbytery 

of Detroit – a KMBS customer with whom he dealt with at KMBS. This 

alone demonstrates a breach of the Agreement as a matter of law: Aron 

solicited a KMBS customer with whom he dealt and also rendered 

competing services in the same geographic area as he worked for KMBS 

within a year after his employment with KMBS ended. 

Aron’s attempts to dispute the other instances of breach are 

unavailing; they are conclusory and fail to acknowledge or contradict the 

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objective evidence which blatantly contradicts Aron’s version of events, and 

clearly shows breach. See Universal Settlements Int'l, Inc. v. Nat'l Viatical, 

Inc., 568 Fed. Appx. 398, 402 (6th Cir. 2014) (disregarding declaration 

testimony that was clearly contradicted by the record and noting that 

“[w]hen opposing parties tell two different stories, one of which is blatantly 

contradicted by the record, so that no reasonable jury could believe it, a 

court should not adopt that version of the facts for purposes of . . . 

summary judgment” (citation omitted)); Marvin v City of Taylor, 509 F.3d 

234, 239 (6th Cir. 2007) (in deciding a summary judgment motion, a court 

must only draw reasonable inferences in favor of the nonmoving party; it 

need not construe the record “in such a manner that is wholly 

unsupportable—in the view of any reasonable jury” considering the 

objective evidence); Peterson v. Hall, No. 11-15154, 2013 WL 6050136, at 

*4 (E.D. Mich. Nov. 15, 2013) (MDOC records “blatantly contradict[ed] 

plaintiff’s version of events” and established that the defendant was 

elsewhere and could not have been the person who allegedly shut the 

plaintiff's hand in his cell door). 

No genuine issue of material fact exists. Aron breached the 

Agreement. 

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 2. Rob Bell

 Rob Bell began working at Applied Imaging as a Major Account Sales 

Manager on July 16, 2013 – just four days after he resigned from his 

Branch Sales Manager position at KMBS. When he started at AI, Bell ran a 

team of five Major Account representatives which sold printing and imaging 

products and services to companies that had 25 devices or more. 

KMBS establishes that Bell breached the Agreement by keeping 

KMBS property at the end of his employment. Bell admits that he retained 

KMBS property – including, but not limited to: (1) a KMBS document titled 

“Copy of Contract Report for Wix Ann Tol,” which has 5385 rows of 

information about a significant amount of KMBS customers; (2) a KMBS 

deployment guide that provides KMBS service managers with procedures 

and specific customer requirements; (3) a KMBS spreadsheet titled MPS 

Template, which contains KMBS pricing and embedded formulas created 

by KMBS; and (4) KMBS cost analysis spreadsheets – among other 

documents – which Bell used by “tweak[ing] the KM labeled stuff to be 

Applied Imaging branded materials.” 

While Bell contends that these materials are not trade secrets, that is 

irrelevant. By failing to return the documents to KMBS at the end of his 

employment, he breached the Agreement. 

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Moreover, KMBS demonstrates that Bell, like Aron, breached the 

Agreement in the year after he left KMBS by rendering services that 

compete with KMBS in the same geographic area in which he performed 

duties for KMBS. 

No genuine dispute of material fact on these issues exists. Bell 

breached the Agreement. 

 3. The Three Other Contract Defendants 

KMBS also establishes that Linda Boyle, Randy Magner, and Anna 

Stewart breached the Agreement. 

At a minimum, undisputed evidence shows that Boyle breached by: 

(1) rendering services for AI that competed with KMBS and which were in 

the same territory she performed her duties for KMBS in the year following 

her employment with KMBS; (2) retaining KMBS property – including 

downloading the contents of her KMBS computer onto a personal flash 

drive on her last day of work for KMBS – after she ended her employment 

with KMBS; and (3) soliciting business from South Lyon Community 

Schools – a KMBS customer within the territory she provided service at 

KMBS and with whom she dealt while at KMBS – in February 2014, which 

fell within her one-year non-compete and non-solicitation period. 

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KMBS establishes that Randy Magner breached the Agreement by: 

(1) rendering competing printing and imaging services for AI in the same 

sales territory he had at KMBS during the one-year non-compete period; 

(2) retaining KMBS property after his employment with KMBS ended; and 

(3) directly and/or indirectly soliciting several KMBS customers (e.g., Zion, 

Arbor Oakland Group/Arbor Press, and The Wyndgate) during the one-year 

restricted period following his employment with KMBS. 

KMBS demonstrates that Anna Stewart breached the Agreement by: 

(1) engaging in prohibited competition in the same geographic territory as 

she worked for KMBS during the one-year restricted period; (2) directly 

and/or indirectly soliciting several KMBS customers during one-year 

restricted period – including, but not limited to: Troy School District, 

Amerisure, Avondale Schools, Great Lakes Wine and Spirits, and East 

Detroit Public Schools (with whom, she admits she began soliciting in 

September 2012 and “had numerous meetings with [them]” over the 

following two years); and (3) retaining KMBS property – including, among 

other things, a “KMBS CPP calculator” – after her employment with KMBS 

ended. 

Boyle, Magner, and Stewart’s feeble response to this overwhelming 

evidence is: “[They] similarly dispute Konica’s breach of contract proofs.” 

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This is insufficient to overcome KMBS’s motion. See United States v. 

Robinson, 390 F.3d 853, 886 (6th Cir. 2004) (“We have cautioned that 

issues adverted to in a perfunctory manner, unaccompanied by some effort 

at developed argumentation, are deemed waived, and that it is not 

sufficient for a party to mention a possible argument in the most skeletal 

way, leaving the court to . . . put flesh on its bones.” (citations and internal 

quotation marks omitted)). 

In addition to the above instances of breach, KMBS claims that the 

Contract Defendants breached the Agreement by – among other things – 

retaining, using, and/or disclosing KMBS’s confidential information. 

However, the Contract Defendants demonstrate genuine issues of material 

fact on these claims. This does not matter. A defendant’s single breach is 

sufficient to sustain KMBS’s breach of contract claim against that 

defendant, and because no genuine issue of material fact exists as to the 

breaches discussed, KMBS establishes the third element of its breach of 

contract claim: i.e., each of the Contract Defendants breached the 

Agreement. 

E. Damages 

KMBS says that although additional discovery and expert testimony is 

necessary to determine the exact amount of its damages, it is undisputed 

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that KMBS suffered at least some damages as a result of the Contract 

Defendants’ breach of the Agreement. Therefore, it seeks summary 

judgment on liability. 

 KMBS identifies evidence showing that Applied Imaging began 

realizing income from certain KMBS customers in the years after the 

Contract Defendants began working for it, and that KMBS had decreased 

revenue from those customers during that time. KMBS says this, along 

with evidence showing that the Contract Defendants solicited some of 

those customers during their one-year restricted period, is sufficient to 

establish causation. KMBS says, “it is reasonably certain that if the 

Contract Defendants had not breached the Agreements, KMBS would have 

retained or expanded its business with the Common Customers and/or, in 

some cases, would not have found it necessary to make monetary 

concessions to retain their business.” 

 This does not satisfy KMBS’s initial burden to demonstrate the 

absence of a genuine dispute as to any material fact related to causation 

and damages. While KMBS identifies evidence that would allow a 

reasonable juror to find that the Contract Defendants’ breach of the 

Agreement caused KMBS damages, it fails to show that a reasonable jury 

could find only in its favor as to causation. See Calderone, 799 F.2d at 259 

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(“Where the moving party has the burden . . . [its] showing must be 

sufficient for the court to hold that no reasonable trier of fact could find 

other than for the moving party.” (internal quotation marks, citation, and 

emphasis omitted)). 

 KMBS’s general reliance on the drop in its hardware and service 

revenue after the time the Contract Defendants left for AI – and AI’s rise in 

revenue during the following years – is insufficient to satisfy its burden. 

KMBS fails to show which breaches of the Agreement led to corresponding 

damages. For example, to establish the causal link between Contract 

Defendants’ breaches of the Agreement and its damages, KMBS must 

show – among other things – that: (1) the Contract Defendants used 

KMBS’s property and/or confidential information to acquire business to its 

detriment; and/or (2) but for the Contract Defendants leaving, KMBS would 

have maintained the business and/or customer(s) it alleges it lost. 

Because genuine issues of material fact exist with respect to KMBS’s 

damages and causation, KMBS is not entitled to summary judgment on 

liability on its breach of contract claim. See Suffolk Cty. Water Auth. v. J.D. 

Posillico, Inc., 267 A.D.2d 301, 302 (N.Y. App. Div. 2nd Dep’t 1999) (finding 

that issues of fact as to causation preclude granting summary judgment on 

liability on breach of contract claim). 

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F. Conclusion on Breach of Contract Claim 

 The Court GRANTS KMBS partial summary judgment on two issues; 

the Court declares that the Agreement is valid and partially enforceable – 

as modified (partially enforced) – and declares that the Contract 

Defendants breached the Agreement as specified above. Because 

causation is not established, the Court DENIES KMBS’s request for 

summary judgment on liability on its breach of contract claim. 

The Court DENIES the Individual Defendants’ motion for summary 

judgment with respect to KMBS’s breach of contract claim. 

V. COUNT II – TORTIOUS INTERFERENCE WITH A CONTRACTUAL 

RELATIONSHIP 

KMBS alleges a tortious interference with contractual relations claim 

against AI and Steve Hurt, and seeks summary judgment as to liability on 

this claim. 

The Court previously held that, while this claim was not preempted, 

KMBS cannot recover under this claim for conduct based on 

misappropriation of trade secrets. 

The choice of law provision in the Agreement which dictates that New 

York law governs the breach of contract claim applies only to the breach of 

contract claim. Because this is a diversity action, Michigan’s substantive 

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tort law applies to the remaining claims. Via The Web Designs, LLC v. 

Beauticontrol Cosmetics, Inc., 148 Fed. Appx. 483, 487 (6th Cir. 2005). 

The Court has decided that KMBS establishes the first two elements 

of a tortious interference with a contract relationship claim: (1) the 

existence of a contract between itself and a third party; and (2) a breach of 

that contract. Id. 

The outcome of this claim rests on the third element: that the breach 

was unjustifiably instigated by the defendant. Id. “[T]he third element 

requires more than just purposeful or knowing behavior on the part of the 

defendant.” Auburn Sales, Inc. v. Cypros Trading & Shipping, Inc., 898 

F.3d 710, 715 (6th Cir. 2018) (citation and internal quotation marks 

omitted). “Instead, ‘the interference with a business relationship must be 

improper in addition to being intentional.’” Id. (citation omitted). 

Thus, to satisfy the third element, KMBS must establish “two distinct 

requirements . . . : an intentional interference and an improper

interference.” Id. at 716. 

First, “intentional” interference means that the defendant’s 

purpose or desire is to cause an interference with a contract or 

business relationship. Indeed, “[s]ince interference with 

contractual relations is an intentional tort, it is required that ... 

the injured party must show that the interference with his 

contractual relations was either desired by the actor or known 

by him to be a substantially certain result of his conduct.” 

Michigan appellate courts describe this intent as an “essential 

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element of a claim of tortious interference”—often 

characterizing a defendant’s intentional conduct as having 

“unjustifiably instigated or induced” a breach of contract. But 

regardless of how Michigan courts describe this intent, “[t]he 

essential thing is the purpose to cause the result. If the actor 

does not have this purpose, his conduct does not subject him to 

liability ... even if it has the unintended effect of deterring the 

third person from dealing with the other.” 

Second, “improper” interference means conduct that is either 

“(1) wrongful per se; or (2) lawful, but done with malice and 

unjustified in law.” “A ‘per se wrongful act’ is an act that is 

inherently wrongful or one that is never justified under any 

circumstances.’” “On the other hand, ‘if the defendant’s 

conduct was not wrongful per se, the plaintiff must demonstrate 

specific, affirmative acts that corroborate the unlawful purpose 

of the interference.’” Said another way, the “improper” nature 

of an interference is shown by proving either (1) conduct that is 

inherently wrongful, or (2) conduct that is inherently legitimate, 

but which becomes wrongful in the context of the defendant’s 

actions and malice. But either way, “[t]he interference must be 

both intentional and improper.” 

Auburn Sales, 898 F.3d at 716-17 (internal citations and footnotes omitted). 

KMBS says AI and Hurt consciously and unjustifiably induced the 

Contract Defendants to breach the Agreement by: (1) employing them in 

violation of the Agreement; (2) orchestrating a shadow commission scheme 

to conceal the Contract Defendants’ breaches: commission for KMBS 

customers purportedly solicited by the Contract Defendants was paid to the 

Contract Defendants but assigned on the books to a different sales 

representative; (3) participating in the Contract Defendants’ solicitation of 

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KMBS customers; and (4) participating in their use and disclosure of 

KMBS’s confidential information. 

Hurt and AI say KMBS cannot establish the third element because 

their conduct was motivated by a legitimate business purpose, such that it 

does not constitute improper motive or interference. However, the fact that 

they acted for their “personal or pecuniary benefit” is not a per se defense 

to their actions. See Jim-Bob, Inc. v. Mehling, 178 Mich. App. 71, 96 

(1989) (“[T]he fact that certain actions are taken with the intent that they 

inure to the personal or pecuniary benefit of the defendant cannot, per se, 

in our view, weave a broad and impenetrable blanket of immunity from 

liability for those actions. Certainly, in nearly all cases of interference, the 

defendant hopes to benefit by way of a resulting advancement of its 

personal or business interests. But these ends do not necessarily justify the 

means undertaken. A defendant may not, with impunity, sabotage the 

contractual agreements of others, [and then cure its wrong merely by 

saying] that its actions were motivated by purely business interests. . . .”); 

Tata Consultancy Servs., v. Systems. Int’l, Inc., 31 F.3d 416, 425 (6th Cir. 

1994) (“Malice could be inferred from the wrongful act of inducing breach of 

the contract, and it would be no defense that [defendant] acted not out of 

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hatred or ill-will toward [plaintiff], but solely in the interest of feathering its 

own economic nest at the expense of a competitor.”). 

Importantly, “the defendant’s motive is but one of several factors 

which must be weighed in assessing the propriety of the defendant’s 

actions.” Jim-Bob, 178 Mich. App. at 96-97; Auburn Sales, 898 F.3d at 717 

n.3 (“When determining whether otherwise lawful conduct becomes 

wrongful and thus improper, a court can consider several factors, such as 

the nature of the conduct, the actor’s motive, the parties’ competing 

interests, social interests and policy considerations, proximate cause, and 

the relationship between the parties.”). 

 Nevertheless, the Court finds that KMBS is not entitled to summary 

judgment on this claim. In addition to certain material facts which remain in 

dispute – such as whether AI and Hurt solicited the Contract Defendants or 

the Contract Defendants initiated the relationship, and whether the “shadow 

commission scheme” actually existed – KMBS fails to establish the 

“intentional interference” requirement of the third element. See Auburn 

Sales, 898 F.3d at 716.

KMBS’s motion for partial summary judgment is DENIED with respect 

to its tortious interference with a contractual relationship claim. 

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VI. COUNT IV – MISAPPROPRIATION OF TRADE SECRETS 

In Count IV, KMBS alleges Defendants misappropriated its trade 

secrets in violation of the Michigan Uniform Trade Secret Act (“MUTSA”). 

As a threshold matter, contrary to the Individual Defendants’ 

argument, New York law does not govern any part of this claim. MUTSA is 

a Michigan statute; Michigan law applies. 

A. Misappropriation of Trade Secrets Claims Under MUTSA

To establish a claim for misappropriation of trade secrets under 

MUTSA, a plaintiff must prove that: (1) it has a protectable trade secret; 

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

secret and knew, or had reason to know, that the trade secret was acquired 

by “improper means.” Ajuba Int’l, LLC v. Saharia, 871 F. Supp. 2d 671, 

691 (E.D. Mich. 2012); Mich. Comp. Laws § 445.1902(b). In relevant part, 

“improper means” includes “breach, or inducement of a breach of a duty to 

maintain secrecy.” Mich. Comp. Laws § 445.1902(a). 

MUTSA defines a “trade secret” as “information, including a formula, 

pattern, compilation, program, device, method, technique, or process” that: 

(i) Derives independent economic value, actual or potential, 

from not being generally known to, and not being readily 

ascertainable by proper means by, other persons who can 

obtain economic value from its disclosure or use[;] [and] 

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(ii) Is the subject of efforts that are reasonable under the 

circumstances to maintain its secrecy. 

Mich. Comp. Laws § 445.1902(d). 

To obtain protection as a trade secret, information must “‘be a 

secret.’” Dura Global Techs., Inc. v. Magna Donnelly Corp., 662 F. Supp. 

2d 855, 859 (E.D. Mich. 2009) (quoting Kubik, Inc. v. Hull, 56 Mich. App. 

335, 347 (Mich. Ct. App. 1974)). “Trade secrets do not ‘encompass 

information which is readily ascertainable, i.e., capable of being acquired 

by competitors or the general public without undue difficulty of hardship.’” 

Id. (quoting Kubik, 56 Mich. App. at 348). The owner of a trade secret must 

take “sufficient measures . . . to guard the secrecy of the information and 

preserve its confidentiality.” Kubik, 56 Mich. App. at 347-48. 

B. KMBS’s Misappropriation of Trade Secret’s Claim 

KMBS identifies hundreds of specific documents and files which it 

claims are trade secrets Defendants misappropriated. Generally, KMBS’s 

alleged trade secrets fall into one of four categories: (1) customer lists – 

including documents called “Everest,” “the List,” and the “Target Account 

Spreadsheet”; (2) KMBS “LESA” pricing; (3) KMBS “Price Books”; and (4) 

KMBS cost per page (“CPP”) calculators. 

Defendants say KMBS fails to identify any protectable trade secrets 

and that they are entitled to summary judgment. They argue that KMBS 

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relies on generic terms and conclusory allegations, rather than describing 

its trade secrets with specificity. See Ajuba Int’l, LLC v. Saharia, No. 2:11-

CV-12936, 2014 WL 3420524, at *7 (E.D. Mich. July 14, 2014) (“[T]he 

plaintiff must identify the trade secrets with specificity.”). This argument 

fails. KMBS does identify its alleged trade secrets with sufficient 

particularity. 

Alternatively, Defendants say that even if KMBS identified its alleged 

trade secrets with sufficient detail, its misappropriation claim still fails 

because Konica’s alleged trade secrets are not entitled to trade secret 

protection for several reasons. 

Notably, Defendants do not seek summary judgment on the ground 

that they did not misappropriate KMBS’s information. However, AI says it 

reserves the right to address the issue of misappropriation following the 

close of discovery or at a time identified by the Court. The record is filled 

with evidence – some disputed, some not – of the Individual Defendants’ 

alleged misappropriation of KMBS information, and there is minimally a 

question of fact regarding AI’s participation in and/or consent to the 

misappropriation. Defendants, unquestionably, would be unable to 

demonstrate an entitlement to summary judgment on the issue of 

misappropriation; their only hope is that the information they 

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misappropriated is not a trade secret, such that any misappropriation of 

that information was not a violation of MUTSA. The Court will not allow 

dispositive motions on misappropriation. 

KMBS also seeks summary judgment on liability on its MUTSA claim. 

KMBS says it sufficiently describes its trade secrets and demonstrates that: 

(1) its trade secret information provides independent economic value and is 

not readily ascertainable by proper means; (2) it expended considerable 

resources to compile and maintain its alleged trade secrets; and (3) despite 

taking sufficient measures to preserve the confidential nature of its trade 

secrets, Defendants misappropriated them. 

Neither side is entitled summary judgment. 

 1. KMBS’s LESA Pricing and CPP Calculators 

 Defendants argue that KMBS’s LESA pricing information and CPP 

calculators are not trade secrets because: (1) the LESA pricing information 

is publicly available and not secret; and (2) the CPP calculators are widely 

used in the industry, not secret, and contain only a simple mathematical 

formula. The Court agrees. 

Defendants show – and Konica fails to rebut – that the LESA pricing 

information is publicly available, and that CPP calculators are widely used 

in the industry, contain no secret formula, and could be easily and quickly 

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created by someone who knows how to use Microsoft Excel. These 

materials are not trade secrets. See PrimePay, LLC v. Barnes, No. 14-

11838, 2015 WL 2405702, at *21 (E.D. Mich. May 20, 2015) (“Matters of 

public knowledge or general knowledge in the industry, or ideas which are 

well known or easily ascertainable, cannot be trade secrets.” (citation 

omitted)). 

 2. KMBS’s Price Books

Defendants say KMBS’s Price Books are not trade secrets because: 

(1) Konica discloses its pricing to customers and lists some of its pricing on 

its website; (2) KMBS pricing has no economic value to Defendants since 

AI does not sell Konica products; and (3) KMBS failed to adequately protect 

the secrecy of this information. 

KMBS shows genuine issues of material fact exist regarding whether 

its Price Books are protectable trade secrets. 

Although KMBS discloses some pricing to the public and its 

customers know prices under their specific contracts, Konica demonstrates 

that its Price Books contains information which it does not disclose to 

customers and which it has not made public. Particularly, KMBS shows 

that its Price Books include multi-tiered pricing options for its equipment 

and services that depend on several factors, as well as internal discounted 

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prices that could be offered to customers based on particular 

circumstances. And, contrary to Defendants’ argument, even though AI 

does not sell KMBS products, Konica’s internal, confidential pricing 

information has value to a competitor, like AI, because it would allow a 

competitor to formulate customer proposals with very competitive pricing 

and with knowledge of what KMBS would likely charge for similar products. 

See Dice Corp. v. Bold Techs., 556 Fed. Appx. 378, 385 (6th Cir. 2014) 

(“Of critical importance here, to be worthy of trade secret status, the secret 

information must afford the owner a competitive advantage by having value 

to the owner and potential competitors.” (citation omitted)); PrimePay, 2015 

WL 2405702, at *22 (noting that an employer’s “pricing schemes” and “its 

markups” are examples of possible trade secrets under MUTSA (citation 

omitted)). KMBS also shows that questions of fact exist regarding whether 

it took sufficient steps to maintain the secrecy of this information. 

Questions of fact exist regarding whether KMBS’s Price Books are 

entitled to trade secret protection. 

 3. KMBS’s Customer Lists

Michigan courts typically find customer lists which only contain basic 

customer information and lists created by a former employee defendant are 

not trade secrets under MUTSA. See, e.g., McKesson Med.-Surgical Inc. 

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v. Micro Bio-Medics, Inc., 266 F. Supp. 2d 590, 594, 596 (E.D. Mich. 2003) 

(finding a customer list compiled by the former employee defendant from 

personal and public sources was not a protectable trade secret). “Whether 

a customer list qualifies as a trade secret depends on if the information is 

‘readily obtainable by proper means’ or ‘discoverable only through 

extraordinary efforts and [significant] expenditure of time and money.’” 

Innovation Ventures, LLC v. Aspen Fitness Prod., Inc., No. 11-CV-13537, 

2015 WL 11071470, at *6 (E.D. Mich. Mar. 31, 2015) (citation and internal 

ellipsis omitted). 

For the reasons below, the Court finds that whether Konica’s 

customer lists are protectable trade secrets is a triable issue of fact. See 

Ashland, 59 A.D.3d at 102 (“Whether a plaintiff's customer list and/or other 

proprietary information constitutes a trade secret or is readily ascertainable 

from public sources is ordinarily a triable issue of fact.”). Particularly, the 

following material facts, among others, remain in dispute and preclude 

summary judgment on Konica’s customer lists: (1) whether the information 

is readily ascertainable by proper means; (2) whether KMBS expended 

significant resources (time and/or money) to compile its customer lists; (3) 

whether the customer lists provide economic value to KMBS and/or a 

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competitor; and (4) whether Konica took sufficient steps to protect its 

customer lists. 

KMBS’s customer lists contain more than just basic customer 

information; additionally, they include the relevant customer contact person 

and phone number, model and serial numbers for KMBS equipment, usage 

and service history, Konica’s assigned service technicians, customer 

contract information, and detailed information about Konica’s sales 

territories and “machines in field.” 

Konica’s customer lists appear similar to the types of lists which 

courts have found to be protectable under MUTSA. For example, in 

Innovation Ventures, the court found the plaintiff established at summary 

judgment that its customer list was a protected trade secret where the list 

“contained information beyond contacts and content generally known to the 

public, [such as] specifically identified distributors and confidential 

customer-specific pricing information.” 2015 WL 11071470, at *6. See 

also Kelly Servs., Inc. v. Noretto, 495 F.Supp.2d 645 (E.D. Mich. 2007); 

Merrill Lynch v. Ran, 67 F.Supp.2d 764, 775 (E.D. Mich. 1999) (finding that 

brokerage firm’s list of client names, phone numbers, and other confidential 

information was entitled to protection as a trade secret under MUTSA)). 

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Defendants argue that KMBS’s customer lists are not trade secrets 

and/or are not entitled to trade secret protection because, among other 

things: (1) the information in the lists is publicly available and/or readily 

ascertainable by proper means; (2) courts have found that customer lists 

are not protected under MUTSA; and (3) KMBS failed to take sufficient 

measures to protect the alleged confidential nature of this information. 

Defendants say the information is available publicly from customers and 

from commercial resources, such as a UCC subscription or private data 

compiling companies. 

For this argument, Defendants rely on two lists, which they claim 

were available in the “commercial market”; they say one is a UCC list, and 

the other was from a private company. However, as KMBS points out, the 

origin of the lists is unclear, and the lists are unauthenticated. 

Defendants rely upon cases that are distinguishable from the facts 

here. See ATC Distrib. Grp., Inc. v. Whatever It Takes Transmissions & 

Parts, Inc., 402 F.3d 700 (6th Cir. 2005); McKesson, 266 F. Supp. 2d 590. 

In McKesson, the customer list was created and maintained by the 

defendant employee from public sources – like phone books – and 

personal sources he compiled throughout his career. The court found that 

the customer list could not support the former employer’s trade secret claim 

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because it “was not a list [the employer] kept itself, nor was it compiled 

from any” of the employer’s sources. McKesson, 266 F. Supp. 2d at 594, 

596 (E.D. Mich. 2003). 

These customer lists, however, were not created by, or the property 

of, the Defendants; they belong to Konica. Konica’s customer lists also 

contain more information than the list in McKesson, and the majority of the 

information is not discoverable from a phone book. 

In ATC, the court found a customer list was not protectable under the 

Kentucky Uniform Trade Secrets Act because there was “no evidence that 

the identities of transmission parts customers contained on [plaintiff’s] 

customer list was obtained through great effort or expense, or that the 

names on the list were not discoverable from a telephone book or similar 

legitimate source.” ATC Distrib. Grp., 402 F.3d at 714. 

KMBS’s customer lists contained more information than the lists in 

ATC. Moreover, unlike in ATC, KMBS presents evidence that compiling 

the information in its lists took great time and effort; that some of the 

information was not publicly available or known by customers; and that the 

information customers did have was not all available from one source in its 

entirety. [See ECF No. 434-11, PageID.26860; ECF No. 433-29, 

PageID.26123-24, 26127-29]. 

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Konica demonstrates a question of fact exists on whether the 

information in its customer lists is “readily ascertainable, i.e., capable of 

being acquired by competitors or the general public without undue difficulty 

of hardship.” See Dura Global, 662 F. Supp. 2d at 859 (citation omitted). 

The fact that KMBS customers possess some of the information in 

Konica’s customer lists and/or some of the information is obtainable in the 

public domain, does not mean that the compiled customer lists are not 

trade secrets. See Am. Furukawa, Inc. v. Hossain, No. 14-13633, 2017 WL 

4324945, at *5 (E.D. Mich. Sept. 29, 2017) (“A trade secret may consist of 

a compilation of information, even if it is compiled from outside sources 

available to other persons.”) (citing Mike's Train House, Inc. v. Lionel, LLC, 

472 F.3d 398, 410-11 (6th Cir. 2006) (“A trade secret can exist in a 

combination of ... components, each of which, by itself, is in the public 

domain, but the unified process, design and operation of which, in unique 

combination, affords a competitive advantage and is a protectable secret”)). 

See also Giasson Aerospace Sci., Inc. v. RCO Eng’g, Inc., 680 F. Supp. 2d 

830, 843 (E.D. Mich. 2010) (“Knowledge of vendors, vendor capabilities, 

and pricing can be a trade secret even if all of the information can be 

obtained through publicly available means so long as the information is not 

readily ascertainable.”). 

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KMBS also produces evidence that the lists were valuable to it and 

competitors because – among other things – they contained all the 

information necessary to compete in the market; they gave insight into how 

KMBS builds its pricing; and they provided detailed information about sales 

territories – including what a territory’s potential was, what customers 

bought in the past, what their current equipment was, when leases were 

coming up, and what the potential was in the future – to assist in creating 

fair and equal territories and quotas based on the machines in field 

information. [See ECF No. 434-11, PageID.26860; ECF No. 433-29, 

PageID.26123-24, 26127-29; ECF No. 435-2, PageID.27532-33 (Rob Bell 

admits that he sent AI’s Vice President of Sales the Everest document 

because they were in the process of trying to assign new territories for AI’s 

sales representative)]. Indeed, even KMBS’s former Vice President for 

Michigan – who Defendants rely upon in their attempt to show Everest is 

not a trade secret – testified that Everest would be “priceless” in the hands 

of a competitor because it “has everything in it. The hardest thing in the job 

for people to do in competitive situations is get that information. If the 

competitor gets [Everest], they have it all.” [Id.]. This is strong evidence 

that Konica’s customer lists are protectable trade secrets. See Innovation 

Ventures, 2015 WL 11071470, at *6 (finding plaintiff’s customer list to be “a 

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protected trade secret” because, “[w]ith [it], [defendant] could bypass the 

trial and error of working with untested distributors, and could rely instead 

on [plaintiff’s] institutional knowledge.”). 

Finally, contrary to Defendants’ arguments, KMBS presents evidence 

that would allow a reasonable jury to find that it took sufficient steps to 

protect the confidential nature of its information; among other things, 

Konica required employees to sign the Agreement and also limited access 

to certain information based on the position of the employee. See Kubik, 

56 Mich. App. at 347-48 (finding that sufficient measures to maintain 

secrecy include express agreements between employers and employees, 

tacit understandings of confidentiality, inferences from attendant 

circumstances, and limits on information access to authorized individuals). 

Even with its showings, KMBS fails to demonstrate entitlement to 

summary judgment. AI makes strong arguments and presents evidence 

that would allow a reasonable jury to conclude that Konica’s customer lists 

are not protectable trade secrets. 

Because a reasonable jury could conclude either way on whether 

KMBS’s customer lists are entitled to trade secret protection, neither side is 

entitled to summary judgment on this issue. 

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VII. DAMAGES 

Applied Imaging raises two issues with KMBS’s notice of damages. 

First, AI says Konica’s lost profit calculation asserts figures for gross profits 

instead of net profits; it says gross profits are not recoverable under 

Michigan law. Second, AI contends that instead of presenting “actual lost 

sales for any ... customers,” Konica only “projected for each of the disputed 

customers an average of historical profits into the future” – estimating that 

the losses occurred within a seven-and-a-half-year span and continued for 

ten years. 

KMBS says AI’s argument is premature because the parties have yet 

to engage in expert discovery. It also says AI incorrectly assumes that its 

lost profit projections represent gross profit numbers. 

At this juncture, AI is not entitled to relief on either issue it raises. 

First, while AI is correct that gross profits do not appear to be 

recoverable in Michigan, see Contract Design Grp., Inc. v. Wayne State 

Univ., 635 Fed. Appx. 222, 235-36 (6th Cir. 2015) (collecting cases), this 

should not be an issue, because Konica says it is not seeking gross profits. 

Second, unless the court misunderstands AI’s argument, there is 

nothing wrong with KMBS projecting its lost profits based on historical data, 

instead of presenting actual lost profits. Without a crystal ball, Konica 

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cannot state with certainty its actual profits lost; a projection based on 

historical data – and taking into account appropriate risk factors and 

business realities – is acceptable. See Contract Design Grp., Inc. v. 

Wayne State Univ., 635 Fed. Appx. 222, 235-37 (6th Cir. 2015). 

However, KMBS’s notice does not appear to state when its loss 

began for each of its customers; instead, Konica generally says that it 

estimates its losses began sometime between April 1, 2011 and November 

30, 2018. While this is insufficient, Konica need not supplement its notice 

of damages; it can provide this information in its expert report. 

Moreover, if Konica intends to project damages for ten years into the 

future, it must be certain it can adequately support the projections and – as 

AI says – account for attrition and other business realities. The Sixth 

Circuit calls such a long projection into question. See Multimatic, Inc. v. 

Faurecia Interior Sys. USA, Inc., 358 Fed. Appx. 643, 654 (6th Cir. 2009) 

(affirming the exclusion of an expert report on lost profits that included a 

“ten-year prediction about the fortunes of the American automotive 

industry” upon concluding that the opinion rested on speculation regarding 

profit margins and future demand for a product.). 

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VIII. CONCLUSION 

 The Court GRANTS KMBS partial summary judgment on two issues. 

The Court DECLARES: 

A. The Agreement is valid and partially enforceable as modified 

(partially enforced). The Court: (1) declines to enforce the nonsolicitation of potential customers provision of the Agreement; 

(2) severs the phrase “or whose identity I have learned” from 

the non-solicitation provision, and limits enforcement of the 

non-solicitation provision to KMBS’s customer with whom the 

Contract Defendants dealt with while employed by KMBS; and 

(3) severs the term “or communicate with” from the 

Agreement’s non-solicitation provision. 

 

B. The Contract Defendants breached the Agreement as specified 

above. 

In all other respects, the Court DENIES KMBS’s motion [ECF No. 

431].

The Court DENIES Defendants’ motions for partial summary 

judgment [ECF No. 430, 432]. 

IT IS ORDERED. 

 S/ Victoria A. Roberts 

 Victoria A. Roberts 

 United States District Judge 

Dated: July 7, 2020 

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