The opinion of the court was delivered by: Shira A. Scheindlin, United States District Judge
Fujitsu has moved for a judgment as a matter of law ("JMOL") at the
close of LinkCo's case, arguing that LinkCo failed to present sufficient
evidence for a jury to find in its favor on any of the remaining three
causes of action: (1) tortious interference with contract, (2)
misappropriation of trade secret, and (3) unfair competition.*fn1 The
parties have fully briefed the issue and this Court has heard oral
Fujitsu submits that a JMOL is required because LinkCo has failed to
offer sufficient proof on at least one element of each claim. See Def.
Outline at 1. Fujitsu further argues that LinkCo has presented
insufficient proof of damages, which is a necessary element of each of
its claims. See Id. at 2. LinkCo contends that there are numerous grounds
upon which a reasonable jury could find Fujitsu liable on each of its
claims. See Pl. Mem. at 1. For the reasons set forth below, the tortious
interference with contract and misappropriation of trade secret claims
are dismissed. The unfair competition claim, however, must be decided by
I. STANDARD FOR JUDGMENT AS A MATTER OF LAW
After a party presents its case, judgment as a matter of law is
appropriate when "there is no legally sufficient evidentiary basis for a
reasonable jury to find for that party on that issue . . . ."
Fed.R.Civ.P. 50(a)(1). Such motions "should be granted cautiously and
sparingly." Meloff v. New York Life Ins. Co., 240 F.3d 138, 145 (2d Cir.
2001) (citing 9A Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 2524, at 252 (2d ed. 1995)). The evidence
must be viewed "in the light most favorable to the opposing party" and
"the court must give deference to all credibility determinations and
reasonable inferences of the jury . . . ." Galdieri-Ambrosini v. National
Realty & Dev. Corp., 136 F.3d 276, 289 (2d Cir. 1998). The court
itself may not weigh the credibility of witnesses or consider the weight
of the evidence. See Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 150 (2000).
According to Webster, LinkCo's system architecture was comprised of 26
elements. See id. at 1193. The system was divided into three parts:
"investor relations, corporate financial disclosure, and public relations
. . . within the context of database management." Id. at 1194. The goal
of the end product was to create a database of information in the public
and commercial domain and assist companies with their regulatory
filings. LinkCo then intended to market this program to the business
community. See id. Ultimately, LinkCo never commercialized any product
related to its designs and the company ceased operations in December
1997. See LinkCo, 2002 WL 237838 at *2.
LinkCo took substantial steps to keep its development efforts secret.
It required all employees and consultants to sign confidentiality and
nondisclosure agreements. See Testimony of David Israel-Rosen
("Israel-Rosen Testimony"), Tr. at 724. It also required prospective
customers and corporate partners to sign confidentiality agreements
before giving them access to its confidential information. See Testimony
of Oded Maimon ("Maimon Testimony"), Tr. at 370, 492.
In May 1996, LinkCo hired Kyoto Kanda. LinkCo alleges that it entered
into an Employment, Noncompetition, Nondisclosure and Nonsolicitation
Agreement ("Employment Agreement") with Kanda. See Complaint ("Compl.")
¶ 21. Kanda was the Chief Executive Officer of LinkCo Japan and
remained with LinkCo until December 31, 1997. See LinkCo, 2002 WL
237838, at *1.
In June 1997, Professor Ajit Kambil, a Management Information Systems
expert at the Stern Business School of New York University ("NYU"),
entered into a Mutual Confidential Nondisclosure Agreement
("Nondisclosure Agreement") with LinkCo, in which he agreed not to
disclose "confidential information" to any third party. See 11/20/02
Letter from Irving B. Levinson, plaintiff's attorney, Plaintiff's Exhibit
("Pl. Ex.") 9 at L00744-45.
In September 1997, LinkCo met with Fujitsu to discuss a possible
collaboration, but those negotiations were unsuccessful. See LinkCo, 2002
WL 237838, at *1. Although LinkCo and Fujitsu met without a
confidentiality agreement, LinkCo only provided Fujitsu with a general
overview of its business strategy and objectives. See Pl. Exs. 1, 67.
Several months later, Fujitsu met secretly with Kanda and Kambil in New
York. See LinkCo, 2002 WL 237838, at *1. LinkCo alleges that Fujitsu
obtained trade secrets and confidential information about LinkCo's
technology, at these meetings, in violation of Kanda and Kambil's
contracts. See id. at *2. In 1998, Fujitsu hired Kanda to conduct
research and provide consulting services. Id. Kambil also eventually
became a consultant for Fujitsu. See 10/1/02 Testimony of Takeshi Ito
("Ito Testimony"), Tr. at 229-31.
A. Tortious Interference with Contract Claim
Under New York law, the elements of a tortious interference with
contract claim are: " that a valid contract exists,  that a `third
party' had knowledge of that contract,  that the third party
intentionally and improperly procured the breach of the contract, and 
that the breach resulted in damage to the plaintiff." Albert v. Loksen,
239 F.3d 256, 274 (2d Cir. 2001) (citing Finley v. Giacobbe, 79 F.3d 1285,
1294 (2d Cir. 1996).
"The existence of a valid contract is an essential element of the cause
of action, and the courts have consistently rejected claims of tortious
interferences in its absence." Mobile Data Shred, Inc. v. United Bank of
Switzerland, No. 99 Civ 10315, 2000 WL 351516, at *7 (S.D.N.Y. Apr. 5,
2000). "`Although a defendant need not be aware of all the details of a
contract, it must have actual knowledge of the specific contract.'"
Sovereign Bus. Forms v. Stenrite Indus. Inc., No. 00 Civ. 3867, 2000 WL
1772599, at *9 (S.D.N.Y. Nov. 28, 2000) (quoting International Mineral
& Res. Inc. v. Pappas, No. 87 Civ. 3988, 1992 WL 354504, at *3
(S.D.N.Y. Nov. 17, 1992)). Defendant's actions must also be the "but for"
cause of the alleged breach of contract. See Sharma v. Skaarup Ship
Mgmt. Corp., 916 F.2d 820, 828 (2d Cir. 1990) ("A plaintiff must allege
that `there would not have been a breach but for the activities of the
defendants.'") (quoting Special Event Entm't v. Rockefeller Center,
Inc., 458 F. Supp. 72, 78 (S.D.N.Y. 1978)). See also Michele Pommier
Models, Inc. v. Men Women N.Y. Model Mgmt., 14 F. Supp.2d 331, 335-36
(S.D.N.Y. 1998) (finding that the element of inducement "requires the
plaintiff to establish that but for the allegedly tortious conduct of the
defendant, the third party would not have breached her contract"),
aff'd, 173 F.3d 845 (2d Cir. 1999).
a. Is There a Valid Contract?
Fujitsu argues that LinkCo has failed to provide a sufficient
evidentiary basis upon which a reasonable jury could: (1) conclude that
Kanda was a party to a "valid" contract with LinkCo, and (2) determine
the nature of ...