*The HONORABLE CATHERINE D. PERRY, United States District

Judge for the Eastern District of Missouri, sitting by

designation.

 The Honorable Michael J. Davis, United States District Judge 1

for the District of Minnesota.

___________

No. 95-2640 

___________

Sip-Top, Inc., a Minnesota *

corporation, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the 

* District of Minnesota. 

Ekco Group, Inc., a Delaware * 

corporation; Ekco Housewares, * 

Inc., a Delaware corporation, *

*

Appellees. *

___________

 Submitted: December 14, 1995

 Filed: June 21, 1996

___________

Before McMILLIAN, and BEAM, Circuit Judges, and PERRY, District Judge. *

___________

BEAM, Circuit Judge.

Sip-Top, Inc. (Sip-Top) appeals the district court's order entering 1

judgment as a matter of law for Ekco Group, Inc. and Ekco Housewares, Inc.

(collectively Ekco). Because Sip-Top relies on unreasonable inferences and

speculation in attempting to prove each of its various theories of

recovery, we affirm.
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I. BACKGROUND

In 1989, Sip-Top began producing and marketing a consumer product,

under the trademark name SIP-TOP, designed to hold a straw and fit over the

top of a beverage can. This product consisted of four components, namely

a plastic lid, a straw, a plastic cap for the end of the straw, and a paper

card used for packaging. According to Sip-Top, it sold in excess of 3.5

million units of this product between 1989 and the time of trial in 1995.

Sip-Top's customers included large retail stores, such as Target, K-Mart,

and Osco Drug. K-Mart purchased 1.8 million of the total units sold,

making it Sip-Top's largest single customer.

 In 1992, Ekco was negotiating with K-Mart over a kitchen tool and

gadget planogram (a pegboard display of a variety of products) to be

located in the housewares department of K-Mart stores. Ekco intended to

include a beverage top as one of the products in the planogram. In the

spring of the same year, Sip-Top contacted Ekco in an effort to obtain

marketing assistance with its SIP-TOP product. Shortly thereafter, Sip-Top

and Ekco began discussing the possibility of Ekco acquiring Sip-Top. To

protect any confidential marketing and manufacturing information provided

to Ekco during the course of the negotiations, Sip-Top required Ekco to

sign a confidentiality agreement. Ekco drafted an agreement, executed it

and sent a copy to Sip-Top.

The Confidential Information Agreement (Confidentiality Agreement),

entered into on May 29, 1992, provided that Ekco would not use or divulge

any confidential information provided to it by Sip-Top, except to evaluate

the desirability of acquiring Sip-Top. The Confidentiality Agreement's

prohibition against using or divulging confidential information did not

apply to public information, information already known to Ekco, information

obtained from a third party, or independently developed information. 
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In 1992, Ekco's Vice President of Operations, Ron Fox, visited SipTop representatives in Minnesota and toured the facilities of the companies

that produced the SIP-TOP components. In addition to touring the

manufacturing facilities, Sip-Top provided Fox with design, production, and

marketing information. Fox also visited the site where the four components

were combined and packaged. After this trip, no further negotiations took

place until the fall of 1992. In the meantime, Ekco explored the

possibility of other manufacturers providing the beverage top for its

planogram. One of these companies, Maverick Ventures, Inc. (Maverick), had

been manufacturing a can top called the "Soda Sipper." Maverick sent Ekco

a letter, dated August 31, 1992, in which Maverick included its price list

and attached a Sip-Top price list. 

In the fall of 1992, Jeff Weinstein of Ekco called Jeff Dress of SipTop and offered to buy the entire Sip-Top company for $75,000. On the same

day, K-Mart indicated to Sip-Top that it intended to purchase 425,000 SIPTOP units. Later in the year, K-Mart indicated that it would order an

additional 425,000 units, making its projected 1993 total over 800,000

units. Sip-Top rejected Ekco's offer, anticipating that it would make more

than $75,000 in annual sales. No further discussions took place between

Sip-Top and Ekco. 

In late 1992, Ekco made an agreement with K-Mart to place a planogram

in K-Mart stores throughout the country. In early 1993, Sip-Top contacted

K-Mart to inquire about its product needs for 1993. The K-Mart buyer in

charge of Sip-Top's account, Bill Tubbs, told Sip-Top that Ekco's

housewares planogram included a product, the "Soda Sipper," similar to SIPTOP. Ekco did not manufacture the "Soda Sipper." Rather, Ekco purchased

the product from Maverick. K-Mart never actually placed the order for

425,000 units of SIP-TOP discussed in the fall of 1992, or any other order.

Sip-Top ceased its business activities after losing the K-Mart account.
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Sip-Top filed this lawsuit in federal court based on diversity

jurisdiction, asserting six claims for relief: breach of the

Confidentiality Agreement; interference with prospective business

advantage; tortious interference with contract; unfair competition;

misappropriation of trade secrets; and conversion. At trial, Sip-Top

presented testimony, before a jury, for over three days. At the close of

Sip-Top's case, Ekco moved for judgment as a matter of law pursuant to Rule

50(a) of the Federal Rules of Civil Procedure. The district court granted

the motion and dismissed Sip-Top's complaint with prejudice. Sip-Top

appeals, asserting that it presented enough evidence to get some of its

claims to the jury. Sip-Top has not, however, appealed the dismissal of

its trade secret and conversion claims.

 

II. DISCUSSION

This case requires us to determine whether the district court erred

in granting judgment as a matter of law to Ekco over Sip-Top's contention

that it presented enough evidence for a jury to infer that Ekco acted

improperly toward Sip-Top. We review a district court's grant of a

judgment as a matter of law de novo and apply the same standards as the

district court. Keenan v. Computer Assocs. Int'l, Inc., 13 F.3d 1266,

1268-69 (8th Cir. 1994). Judgment as a matter of law may be granted when

"a party has been fully heard on an issue and there is no legally

sufficient evidentiary basis for a reasonable jury to find for that party."

Fed. R. Civ. P. 50(a)(1). Affirming a judgment as a matter of law "is

appropriate where the evidence is such that, without weighing the

credibility of the witnesses, there can be but one reasonable conclusion

as to the verdict." Caudill v. Farmland Indus., Inc., 919 F.2d 83, 86 (8th

Cir. 1990). We view the evidence in the light most favorable to the

nonmoving party. See, e.g., Larson v. Miller, 76 F.3d 1446, 1452 (8th Cir.

1996). In applying this standard we must: 
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"(1) resolve direct factual conflicts in favor of the

nonmovant, (2) assume as true all facts supporting the

nonmovant which the evidence tended to prove, (3) give the

nonmovant the benefit of all reasonable inferences, and (4)

deny the motion if the evidence so viewed would allow

reasonable jurors to differ as to the conclusions that could be

drawn."

Pumps & Power Co. v. Southern States Indus., Inc., 787 F.2d 1252, 1258 (8th

Cir. 1986) (quoting Jones v. Edwards, 770 F.2d 739, 740 (8th Cir. 1985)).

Ultimately, "[a] motion for judgment as a matter of law presents a legal

question to the district court and this court on review: `whether there

is sufficient evidence to support a jury verdict.'" Keenan, 13 F.3d at

1268 (quoting White v. Pence, 961 F.2d 776, 779 (8th Cir. 1992)).

Sip-Top contends it presented sufficient evidence under this standard

to permit each of its claims to be considered by the jury. Sip-Top asserts

that the district court improperly resolved factual issues, weighed

evidence, and construed all inferences against Sip-Top. We disagree.

Although we must give Sip-Top the benefit of all reasonable inferences, we

may not accord a party "the benefit of unreasonable inferences or those `at

war with the undisputed facts.'" Marcoux v. Van Wyk, 572 F.2d 651, 653

(8th Cir. 1978) (quoting Schneider v. Chrysler Motors Corp., 401 F.2d 549,

555 (8th Cir. 1968), cert. dismissed by 439 U.S. 801 (1978)). A reasonable

inference is one "which may be drawn from the evidence without resort to

speculation." Hauser v. Equifax, Inc., 602 F.2d 811, 814 (8th Cir. 1979));

see also Caudill, 919 F.2d at 86. When the record contains no proof beyond

speculation to support the verdict, judgment as a matter of law is

appropriate. Pumps & Power Co., 787 F.2d at 1258. After analyzing each

of Sip-Top's four causes of action, we conclude that Sip-Top failed to

establish sufficient evidence to support a jury verdict and thus the

district court did not err in granting Ekco judgment as a matter of law.
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A. Breach of Contract (Confidentiality Agreement)

Turning first to Sip-Top's breach of contract claim, Sip-Top must

prove the existence of a valid contract and that Ekco failed, without legal

justification, to perform as obligated under the contract. See, e.g.,

Associated Cinemas of Am., Inc. v. World Amusement Co., 276 N.W. 7, 10

(Minn. 1937). We assume the validity of the Confidentiality Agreement and

focus on whether Sip-Top presented evidence of a breach. The

Confidentiality Agreement prohibits Ekco from divulging or using

confidential information provided by Sip-Top. The Confidentiality

Agreement does not apply to public information, information already known

to Ekco, information obtained from a third party, or information

independently developed. Therefore, to prove that Ekco breached the

contract, Sip-Top must demonstrate that Ekco either used or divulged

confidential information and that it was the type of information covered

by the Confidentiality Agreement.

 

Sip-Top contends that Ekco used confidential information to evaluate

Maverick, another manufacturer of a similar beverage cap. Sip-Top showed

that Ekco received various information from Sip-Top regarding its product.

Sip-Top also demonstrated that Ekco eventually purchased Maverick's

product. Assuming that the information provided to Ekco by Sip-Top was

confidential, we nevertheless conclude that Sip-Top failed to provide

sufficient evidence to support a jury verdict that Ekco used, or divulged,

any confidential information when it negotiated with Maverick. Sip-Top

even concedes that it did not offer any direct evidence on how Ekco used

or divulged confidential information. Rather, Sip-Top asserts that the

jury should have been able to infer that in negotiating with Maverick, Ekco

used or divulged confidential information provided by Sip-Top. This type

of inference, however, is unreasonable and nothing more than mere

speculation. And as such, it is insufficient to survive a motion for

judgment as a matter of law.
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In a case factually similar to the one before us, the Fifth Circuit

reached the same result. See Omnitech Int'l, Inc. v. Clorox Co., 11 F.3d

1316, 1324 (5th Cir.) (concluding that the plaintiff company "simply failed

to demonstrate that [the defendant company] misused the information it

transferred pursuant to the non-disclosure agreement" and granting the

plaintiff company judgment as a matter of law), cert. denied, 115 S. Ct.

71 (1994). In both the Omnitech case and the present case, the contract

did not prohibit the parties from negotiating, or entering into agreements,

with other companies. Thus, evidence of Ekco's interaction with Maverick

does not tend to prove that Ekco breached the Confidentiality Agreement,

unless the evidence shows that Ekco used or divulged confidential

information provided by Sip-Top. Moreover, the Confidentiality Agreement

expressly authorized Ekco to use the information provided by Sip-Top to

evaluate the desirability of acquiring Sip-Top. Therefore, even if we

assume Sip-Top's assertions are true, no inference arises that Ekco used

or divulged confidential information. The fact that the information

provided by Sip-Top might have made Ekco more informed in evaluating

whether to acquire Sip-Top or purchase Maverick's product does not support

an inference that Ekco violated the Confidentiality Agreement. See id. at

1327 (referring back to the court's conclusion that such use of

confidential information also did not constitute misappropriation of a

trade secret).

To accept Sip-Top's argument we would need to make the unreasonable

inference that every time a company receives confidential information it

uses that information if it negotiates with another entity. As recognized

in Omnitech, Sip-Top's position would lead to one of two equally

unacceptable results:

(i) every time a company entered into preliminary negotiations

for a possible purchase of another company's assets in which

the acquiring company was given limited access to the target's

trade secrets, the acquiring party would effectively be

precluded from evaluating other
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potential targets; or (ii) the acquiring company would, as a

practical matter, be forced to make a purchase decision without

the benefit of examination of the target company's most

important assets--its trade secrets. 

Id. at 1325. Thus, the district court properly disposed of Sip-Top's

breach of contract claim by entering judgment as a matter of law for Ekco.

B. Interference with Prospective Business Relationship

Sip-Top next contends that Ekco interfered with Sip-Top's business

relationship with K-Mart. To prevail on an interference with prospective

business relationship claim under Minnesota law, Sip-Top must prove that

Ekco intentionally committed a wrongful act that improperly interfered with

Sip-Top's prospective business relationship with K-Mart. See, e.g., Hunt

v. University of Minnesota, 465 N.W.2d 88, 95 (Minn. Ct. App. 1991) (citing

United Wild Rice, Inc. v. Nelson, 313 N.W.2d 628, 633 (Minn. 1982)). 

Sip-Top did not submit any evidence by a K-Mart employee as to why

K-Mart decided to cease its business relationship with Sip-Top. Although

this failure would not alone be fatal to its claim, Sip-Top also failed to

present evidence that Ekco acted wrongfully. Rather, Sip-Top admittedly

relies, once again, solely on inference. Sip-Top presented evidence that

it had a prior business relationship with K-Mart. Sip-Top employees

testified that in the fall of 1992, K-Mart expressed its intention of

purchasing additional SIP-TOP units. And it is undisputed that K-Mart in

fact did not purchase any additional SIP-TOP units. Rather, K-Mart entered

into an agreement with Ekco and Ekco purchased its beverage tops from

another company, Maverick. Even assuming the veracity of all this

evidence, and other evidence, Sip-Top failed to provide anything more than

speculation as to how Ekco wrongfully interfered with Sip-Top's future

business relationship with K-Mart. The evidence reflects that various

companies were competing to sell
 We doubt that Sip-Top could establish the existence of an

2

oral contract for over 400,000 units of SIP-TOP. As a matter of

law, Sip-Top and K-Mart could not have a valid oral contract for a

sale of goods worth over $500 dollars. Minn. Stat. § 336.2-201.

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their own products but does not support an inference that Ekco wrongfully

interfered with Sip-Top's business relationship with K-Mart. Nor does such

evidence support an inference that Ekco's conduct caused Sip-Top to lose

its K-Mart account. Therefore, this claim also fails as a matter of law.

C. Tortious Interference with Contract

We next turn to Sip-Top's tortious interference with contract claim.

Under Minnesota law, Sip-Top must prove the following five elements to

prevail: (1) a contract existed between Sip-Top and K-Mart; (2) Ekco knew

about the contract; (3) Ekco intentionally interfered with the contract;

(4) Ekco's actions were not justified; and (5) Sip-Top suffered damages as

a result. See, e.g., Furlev Sales & Assocs., Inc. v. North American

Automotive Warehouse, Inc., 325 N.W.2d 20, 25 (Minn. 1982). Assuming that

the testimony provided by Sip-Top's employees established that K-Mart made

an oral commitment in the fall of 1992 to order a significant number of

SIP-TOP units, Sip-Top failed to provide any evidence that Ekco

2

intentionally interfered with that contract. Sip-Top cannot rely on

unreasonable inferences and speculation to establish the necessary

evidentiary basis required to support a finding that Ekco intentionally

interfered with Sip-Top's contract. See City Nat'l Bank of Fort Smith v.

Unique Structures, Inc., 929 F.2d 1308, 1315-16 (8th Cir. 1991) (upholding

judgment as a matter of law when the plaintiff relied on inference to

support the required proof of intent under Arkansas law). Moreover, the

evidence does not support an inference that Ekco's actions caused Sip-Top

to lose a contract with K-Mart. Thus, this claim also fails as a matter

of law.
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D. Unfair Competition

Finally, we analyze Sip-Top's unfair competition claim, which is not

an independent tort, but rather encompasses several causes of action that

have been recognized in order to protect commercial interests.

Rehabilitation Specialists, Inc. v. Koering, 404 N.W.2d 301, 305 (Minn. Ct.

App. 1987). Under Minnesota law, an unfair competition claim may be based

on either: (1) tortious interference with contract; or (2) improper use

of a trade secret. Id. at 305-06 (citing United Wild Rice, 313 N.W.2d at

632). As discussed above, Sip-Top failed to provide the minimum amount of

evidence required to send a tortious interference with contract claim to

the jury and thus Sip-Top cannot base its unfair competition claim on that

premise. Moreover, improper use of a trade secret obviously would require

Sip-Top to prove that Ekco used secret information without Sip-Top's

consent. See Minn. Stat. § 325C.01, subd. 3 (defining misappropriation of

a trade secret as either: (1) improper acquisition of a trade secret; or

(2) disclosure or use of a trade secret without consent); Electro-Craft

Corp. v. Controlled Motion, Inc., 332 N.W.2d 890, 897 (Minn. 1983). Just

as in its breach of contract claim, Sip-Top cannot rely on unreasonable

inferences and speculation to establish a sufficient evidentiary basis for

a reasonable jury to find that Ekco used a trade secret provided to it by

Sip-Top. See, e.g., Omnitech, 11 F.3d at 1325-26. Therefore, Sip-Top's

fourth and final claim fails as a matter of law.

III. CONCLUSION

Sip-Top failed to provide evidence essential to its claims, relying

instead on unreasonable inferences and mere speculation. Accordingly, we

affirm the district court's order granting Ekco's motion for judgment as

a matter of law and dismissing Sip-Top's complaint with prejudice.
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A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.