Full opinion text
MEMORANDUM AND ORDER TRAGER, District Judge. Plaintiff Abernathy-Thomas Engineering Co. (“Abernathy”) brought this action against defendant Pall Corporation and several of its subsidiaries (collectively, “Pall”) alleging fraud, misuse of proprietary information, unfair competition, tor-tious interference with contract, breach of fiduciary duty, and a debt owed on a commission contract, all in connection with Pall’s termination of an exclusive distribution agreement with Abernathy. In response, Pall asserted counterclaims against Abernathy for a debt owed and for breach of contract. After conducting discovery, Pall moved for summary judgment on all claims, and Abernathy moved for partial summary judgment on its commission contract claim and on Pall’s counterclaims. Background The facts of this case, viewed in the light most favorable to the non-moving party with respect to each claim, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986); Ward v. Thomas, 207 F.3d 114, 119 (2d Cir.2000), are as follows. (1) Pall is a large, publicly-held company that sells industrial filters. (Ellis Decl. of 9/9/99, ¶¶ 1-2 [hereinafter Ellis Decl. I].) Abernathy is a closely-held distributor of various industrial products, including filters. (Ellis Dep. at 9, 37.) From some time in the 1950s until March 12, 1993, Abernathy (and its predecessor, Equipment Sales Corporation) acted as the exclusive distributor of, and sales representative for, Pall’s filtration products in Tennessee, Kentucky, North Carolina, and South Carolina (the “Territory”). (Ellis Decl. I, ¶ 3; Festa Dep. at 43.) Prior to retaining Abernathy as its sales representative, Pall had little or no sales in this Territory. (Ellis Decl. I, ¶ 5.) By 1993, sales of Pall products secured by Abernathy’s efforts in the Territory had grown to approximately $5,000,000 annually and were generated by numerous customers, all of which had been developed by Abernathy over forty years. (Id. ¶ 6.) In addition, Abernathy developed valuable information about these customers that has helped Pall to preserve and increase its sales in the Territory. (Id. ¶ 7.) This information included the types of filters used by each customer, the filter layouts at each customer plant, customer purchase projections, and plant development plans. (Id.; Festa Dep. at 45.) (2) By the 1990s, sales of Pall products constituted the bulk of Abernathy’s total sales, giving Pall considerable influence over Abernathy and allowing it to impose a number of obligations on Abernathy through its Exclusive Distribution Agreement with Abernathy. (Ellis Decl. I, ¶ 8.) Most pertinent to this action was a covenant under which [t]he Distributor agree[d] to send the Company a monthly report of all shipments to customers of Products, indicating specific products, including quantity, in substantially the following manner: Customer State, City Part Number Quantity Date Shipped (Ortego Affirm., Ex. C, § IV(f)). The Exclusive Distribution Agreement does not contain a confidentiality clause in the distributor’s favor, and at no point in their relationship did Pall indicate to Abernathy that the information collected under Section IV(f) would not be disclosed to anyone else. (Ellis Dep. at 104, 114-15; Prevatte Dep. at 24.) On the contrary, the Agreement provided: The Company [Pall] may use such information as it sees fit to aid in the distribution, marketing, sales, promotion, or manufacture of its Products. (Ortego Affirm., Ex. C, § IV(f)). Moreover, Abernathy’s vice president Deryl Prevatte (“Prevatte”) could not recall any occasion on which Abernathy sought to modify the Agreement with a promise of confidentiality from Pall. (Prevatte Dep. at 48.) Nonetheless, Abernathy assumed that the customer information supplied to Pall would be kept in confidence. (Ellis Dep. at 114 (“We had no reason to doubt that they would do otherwise.”).) In this regard, it is should be noted that Pall’s former senior vice-president Robert J. Festa (“Festa”) conceded in deposition that the relationship between Pall and its distributors was a “close” one, akin to a “partnership,” and that it involved an “element of trust.” (Festa Dep. at 53-54.) Accordingly, pursuant to Section IV(f) of the Agreement, Abernathy sent Pall copies of every invoice for every Pall product it sold, which Pall then entered into a computer database. (Prevatte Dep. at 27; Festa Dep. at 47-48.) Each invoice indicated the customer’s name and address, and the quantity and part number(s) sold. (Id.) Prevatte stated that Pall began requiring Abernathy to supply this information in the 1980s, or maybe even as far back as the 1970s. (Prevatte Dep. at 30.) Over the years, Pall gained further familiarity with Abernathy’s customers by occasionally sending its own employees to accompany Abernathy sales representatives on visits to Abernathy’s customers. (Prevatte Dep. at 30; Festa Dep. at 43-45.) In addition, acting on the information obtained from Abernathy, Pall employees would from time to time directly contact Abernathy’s customers by telephone, beginning sometime before 1990. (Ellis Dep. at 148-49; Prevatte Dep. at 32; Festa Dep. at 44.) Such direct contacts with Abernathy’s customers were expressly authorized by the Exclusive Distribution Agreement, provided that Pall paid the distributor the appropriate commission on such sales: The Company shall have the right to make direct sales of Products to customers in the Markets in the Territory. In the event that the Company makes any direct sales of Products to customers in the Markets, located in the Territory, the Company shall pay to the Distributor a commission on such sales according to the commission schedule.... (Ortego Affirm., Ex. C, § VII(a).) The final covenant relevant to this action was a best efforts clause that imposed certain manpower and training obligations on Abernathy: The Distributor agrees to use its best efforts to distribute, market, sell and promote the Products in the Territory, which shall be the Distributor’s primary responsibility.... The Distributor ... agrees to acquire, develop, train and sustain sufficient sales and service personnel to distribute, market, sell and promote the Products. The Distributor will enroll all new sales personnel in a Pall training program as soon after being hired as the Company deems necessary. (Id., § IV(a).) (3) Although the relationship between the two companies would appear to have been a satisfactory one for many years given its longevity, throughout the period from 1990 to 1993 Pall began to express dissatisfaction with Abernathy’s performance in various respects. (Ellis Dep. at 60-64; Pre-vatte Dep. at 36.) Specifically, “[m]any people, various people” at Pall complained that Abernathy was not meeting the annual sales goals that Pall had set for Abernathy as part of the “Sales Action Plans” (“SAPs”) developed by Abernathy and Pall each June or July. (Ellis Dep. at 61-63; see also Ellis Dep. at 16-17; Prevatte Dep. at 16-18; Festa Dep. at 20-22.) Pall also complained about the knowledge and training of Abernathy’s sales representatives. (Ellis Dep. at 62.) Finally, a recurring complaint voiced by Pall even before 1990 was that Abernathy did not have a sufficiently large sales force in place to market Pali’s products effectively. (Ellis Dep. at 63-64, 126, 226; Prevatte Dep. at 20, 22-23; see also Prevatte Dep. at 85, 87.) (4) Until 1992, Abernathy — and all of Pali’s other distributors — distributed Pali’s products pursuant to exclusive distribution agreements and sales representative agreements that were terminable without cause by either party on thirty days notice. (Ortego Affirm., Ex. C, § VIII(a); id., Ex. D, § VI(a).) Such thirty-day distributorship contracts are standard in the industrial products sector. (Ellis Dep. at 13-14, 46-47; Prevatte Dep. at 11-14.) However, in November 1991, at an annual meeting with its various sales representatives and distributors, Pall hinted that it was considering granting some of its distributors longer term contracts. The theme for the meeting that year was “Renew in ’92.” At the Renew in ’92 meeting, Pali’s then-president and CEO, Maurice G. Hardy (“Hardy”), outlined various qualities that Pall was looking for in a distributor: 1) The distributor should be proficient at selling high value-added, leading edge technological products, and have an organization capable of partnering with the customer in order to satisfy the customers’ needs for quality, of both product and service, and on-time delivery. 2) The distributor partner should be highly profitable and in so being, be able to sustain itself in business for an unlimited future period also, and provide the entrepreneurial management structure to ensure this. (Ortego Affirm., Ex. H, at 8.) Hardy then intimated: “Providing that our distributor partner meets the criteria that I mentioned previously, Pall Corporation’s management will have no problem — based on performance clauses being met — negotiating a long-term commitment with its distribution partners.” (Id. at 9.) Hardy, who had formerly been the head of Pall’s distribution operation in Europe, had experienced success with the introduction of long-term contracts in Europe and felt that a similar practice would benefit sales in the United States. (Festa Dep. at 76; Rapone Dep. at 61.) However, at no point during the Renew in ’92 meeting (or at any other time) did Hardy or any other Pall official expressly offer Abernathy a long-term contract or discuss the matter with any Abernathy officials personally. (Ellis Dep. at 75, 77, 88-91, 94.) As a follow-up to Hardy’s remarks on the possibility of negotiating long-term distribution contracts, Pall senior vice president Festa sent a memorandum to Abernathy and other distributors on January 27, 1992 (the “Festa Memo”), in which he noted that Hardy had “expressed his conviction that those distributors who establish a track record of meeting our requirements may be offered a two year contract.” (Ortego Affirm., Ex. I, at 1.) In the memorandum, Festa explained that he was writing “to outline some of the criteria we will be using to determine who will be offered the extended term contract.” (Id.) Festa then provided a list of factors that “at a minimum” would be considered before an award of a two-year contract would be made: 1) The distributor must provide for appropriate levels of manpower, training, and selling time. They must also hire Pall Product Managers, when requested by Pall Corporation. They must maintain a stable field sales organization. 2) The [Sales Action Plan] development and execution must be diligently pursued in a sincere effort to meet the sales targets arrived at in our joint SAP meetings. 3) The distributor must work with Pall in the implementation of a Quality Partnership between our companies. They must also pursue, with Pali’s help, ISO 9002 (stocklist) Certification. 4) The distributor must maintain satisfactory levels of inventory, and report stock sales and inventory levels to Pall Corporation in a timely and complete manner. 5) The distributor must participate in our EDI network for order entry, as soon as it is in place. 6) The distributor will promptly follow up on all qualified leads provided by Pall Corporation, and report results in a timely manner. 7) The distributor will also be rated on other more subjective but equally important factors, including but not limited to, establishing a proper succession plan, preparing and sharing with us their yearly business plans, maintaining a willingness to commit resources to new market areas identified by Pall, and in general maintaining an attitude of loyalty towards, and a willingness to be a partner with Pall Corporation. (Id. at 1-2.) Festa added that Pall expected to meet “over the next few months” with those distributors who qualified for the two-year contract. (Id. at 2.) (5) Abernathy claims that it took various actions over the course of 1992 to meet the enumerated criteria. (Ellis Decl. I, ¶ 12.) Since the late 1980s, Pall had been requesting that Abernathy hire or designate one of its employees, preferably one with technical expertise, to be a “Pall Product Manager,” that is, an employee dedicated exclusively to managing the distributor’s sales efforts for Pall products. (Prevatte Dep. at 87; Festa Dep. at 57.) At some point after Renew in ’92, Abernathy finally responded to Pall’s request by appointing Roger Ellis, the son of Abernathy’s then-president Jim Ellis (“Ellis”), as its Pall Product Manager. (Ellis Decl. I, ¶ 10; Prevatte Dep. at 87-89; Festa Dep. at 57-58.) In addition, Abernathy — which already had four of its employees enrolled in ISO 9002 training courses at its own expense before Renew in ’92 — switched its employees to an ISO 9002 training course that Pall was to give in February of 1998 at a discounted rate. (Ellis Dep. at 78, 184-85, 193; Ortego Affirm., Ex. K, at 4; id., Ex. O, at 2.) Abernathy’s management also reviewed whether Abernathy met the remaining requirements specified in the Festa Memo. (Ellis Dep. at 78.) Besides these steps, however, Abernathy did not change any clients or business relationships; nor did it alter the way in which it developed Pall sales or sold Pall products. (Ellis Dep. at 78-79; Prevatte Dep. at 54.) Moreover, the individual most knowledgeable about Abernathy’s finances, Jim Ellis, (Ellis Dep. at 198), could not recall whether Abernathy expended any other monies in reliance on Renew in ’92 or the Festa memo, (id. at 79), though in a subsequent declaration, Ellis estimated that Abernathy’s efforts to secure a long-term contract with Pall cost it $200,000, (Ellis Decl. I, ¶ 21). (6) Despite the designation of Roger Ellis as Pall Product Manager, Pali’s disenchantment with Abernathy appears to have grown. At some point in the fall of 1992, Deryl Prevatte heard through “the grapevine” that Pall was in some way dissatisfied with Abernathy’s performance. (Prevatte Dep. at 34-35.) As a result, during a dinner meeting in Long Island with Festa and Pall’s senior vice president in charge of distribution, Vincent Rapone (“Rapone”), on or about September 23, 1992, Prevatte asked whether they had any dissatisfaction with Abernathy’s performance. (Prevatte Dep. at 36; see also Ellis Dep. at 155.) According to Prevatte, neither Rapone nor Festa indicated that Pall had any problem with Abernathy. (Prevatte Dep. at 37; see also Ellis Dep. at 155.) Nonetheless, Prevatte continued to hear “rumors” about Pall’s dissatisfaction with Abernathy from salespeople who had spoken to Pall regional representatives. (Prevatte Dep. at 35.) On October 13, 1992, Abernathy’s Jim Ellis called Rapone to inquire about what Pall’s concerns were, if any. (Ellis Dep. at 156.) After speaking with other members of Pali’s management, including Festa, Ra-pone called Ellis back on October 16, 1992, and indicated that Pall had four concerns with Abernathy’s performance: (1) that Abernathy’s accounts payable were 42 days behind; (2) that Abernathy had not met the sales goals specified in its first quarter Sales Action Plan; (3) that Roger Ellis was not spending all of his time on the Pall account, despite the fact that Abernathy had designated him to be the Pall Product Manager; and (4) that Abernathy did not have enough sales. (Id. at 156-159.) At his deposition in this action, Ellis could not recall whether he followed up with anyone from Pall regarding any of these four items. (Id. at 159.) (7) Contemporaneously with these events, in 1992 Pall began to develop a new sales tracking program called “SITES.” (Ellis Dep. at 105.) (The name appears to be an acronym, but neither of the parties has indicated what it stood for.) All of Pali’s distributors were required to implement the new program. (Ellis Dep. at 107.) SITES was based on a computer program that allowed distributors to create a database of information on their customers. (See Pall Corp., SITES Database System: Technical Reference and Users’ Guide 1-1 (n.d.), attached as exhibit to Letter from Defendant’s Counsel to Chambers of 5/8/00 [hereinafter SITES Manual].) The SITES database was to contain much of the information that Pall had already obtained through customer invoices and direct contacts, including the customers’ names, addresses, contact people, and the number and types of filter housings and filter elements used at each location. (Ellis Dep. at 106-07, 109; Prevatte Dep. at 79; Festa Dep. at 172; Rapone Dep. at 38-39, 197; SITES Manual at 3-1, 4-4.) SITES, however, allowed the distributor and Pall to compile this information in a much more efficient and readily accessible form. (Ellis Dep. at 109-10; Festa Dep. at 172.) In addition, each distributor’s salespeople were to enter information on their customers’ filter “change-out” dates into the SITES database. (Festa Dep. at 85-86; Rapone Dep. at 19-20, 39-40; SITES Manual at 4-4 to -8.) Industrial filters generally consist of a filter housing, which has a relatively long useful life, and a filter element, which has a much shorter useful life. (Festa Dep. at 86; Rapone Dep. at 26.) By keeping track of the dates on which a particular customer was likely to need a replacement filter element, Pall and its distributors could gain an advantage over competitors in the lucrative replacement filter market. (Festa Dep. at 131— 32; Rapone Dep. at 19-20, 40.) One of the functions of the SITES program was to generate a report indicating which customers were approaching a change-out date for their filter elements. (SITES Manual at 1-1, 4-8, 6-1.) These reports allowed Pall’s distributors to make anticipatory sales calls to those customers and thus beat their competitors to the sale. (Ellis Dep. at 110.) All of the information entered into each distributor’s database, including customer change-out dates, was to be copied onto a computer disk and sent to Pall periodically. (Festa Dep. at 174; Or-tego Affirm., Ex. E; SITES Manual at 7-1.) Neither party’s deposition witnesses could recall precisely when the SITES program was introduced. Abernathy’s Jim Ellis testified only that it was begun sometime after Renew in ’92, i.e., after November of 1991. (Ellis Dep. at 106.) As for Pall, Rapone testified that as of June 17, 1992 the SITES computer program had not been completed, (Rapone Dep. at 124), while Festa testified that it was operational by January 23, 1993, (Festa Dep. at 150-51). The documentary evidence produced to the court suggests that the SITES program was not implemented at Abernathy until January of 1993. Specifically, a letter from Abernathy to Pall dated June 4, 1992, indicates that, at that point, Pall had only just inquired as to the type of computer hardware used by its distributors. (Ortego Affirm., Ex. P.) Seven months later, on January 18, 1993, Abernathy signed an amendment to the Exclusive Distribution Agreement requiring Abernathy to participate in the SITES program (the “SITES Amendment”). (Or-tego Affirm., Ex. E.) Finally, in a letter to Pall dated January 21, 1993, Abernathy indicated it was “moving along with [its] Sites Program” and “expect[ed] to start getting the[ ] reports back from the salesmen by the end of January.” (Id., Ex. O, at 2 (emphasis added).) (8) In the same January 21st letter, Abernathy’s Ellis and Prevatte provided Pall’s Festa with a monthly management report. (Id.) At the end of the letter, Ellis and Prevatte asked: Bob, [Abernathy] is interested in a long term contract with Pall. How can we get a long term contract? What do we need to do and who do we need to contact to be considered for the long term contract? (Id. at 2.) As far as Prevatte could recall, this letter was the first and only time that Abernathy had broached the subject of the long-term contract with Pall. (Prevatte Dep. at 60.) Unbeknownst to Ellis and Prevatte, however, granting Abernathy a long-term contract was the farthest thing from the minds of Pali’s management in January of 1993. According to Rapone, Pall’s management had become increasingly dissatisfied with Abernathy’s declining sales in the fall of 1992. (Rapone Dep. at 193-94.) Finally, Festa and several Pall officials who reported to him determined to find out whether there was another viable distributor for Pall products in the Territory. (Festa Dep. at 78-80; Rapone Dep. at 58, 192-93.) Festa directed Rapone to begin searching for a replacement for Abernathy. (Rapone Dep. at 57.) Rapone interviewed two potential replacements during the last two weeks of January 1993. (Fes-ta Dep. at 154; Rapone Dep. at 162-63.) In early February 1993, Pall’s management determined that Fluid Flow of North Carolina, Inc. (“Fluid Flow”) could serve Pall’s distribution needs in the Territory. (Festa Dep. at 80; Rapone Dep. at 195.) At that point, Pali’s decision to terminate Abernathy became final. (Rapone Dep. at 195.) On February 11, 1993, Pall sent notice to Abernathy that it was terminating the distributorship agreements and that the termination would become effective in thirty days. (Ortego Affirm., Ex. Y.) Pall simultaneously appointed Fluid Flow to be its new exclusive distributor in the Territory. (Festa Dep. at 80.) (9) Abernathy claims that after Pall terminated its distributorship, some of its industrial filter customers terminated blanket supply contracts they had with Abernathy. (Ellis Dep. at 272-73.) In deposition, Abernathy’s Jim Ellis could only recall one such customer by name, DuPont, but stated that Abernathy had documents that would show that there were others. (Id. at 273-74.) Nonetheless, in papers submitted ten months later on the instant motions, Abernathy has still not named these additional lost customers. Abernathy’s asserted damages do not rest solely on having lost its supplier of filtration products, however. Abernathy claims that it lost additional business as a result of unfair competition from Pall and its new distributor in the Territory, Fluid Flow. Specifically, Abernathy claims that Pall gave Fluid Flow the customer information that Abernathy had compiled for Pall over the course of their forty-year relationship. (Ellis Dep. at 115-17.) As evidence that Pall had, through Fluid Flow, used this customer information to Abernathy’s disadvantage, Ellis testified in deposition that: [I]mmediately after ... Fluid Flow was appointed, a few of our customers told us that they got flyers from Fluid Flow telling them they were the new distributor for Pall. And at least one of those gave me a copy of the announcement that he received from Fluid Flow. And in this particular case, the individual said that he had been called by Fluid Flow. ... [I]mmediately they were calling on the key individual that buys filters and so forth. And to my knowledge, Fluid Flow did not have at least this type of filter prior to taking on the Pall line and had no reason to call any [of the] individuals [who] told us that they had not been called on by Fluid Flow prior to this. (Id. at 115-17; see also Prevatte Dep. at 45^46.) Ellis estimates that it would have taken Fluid Flow two years to compile this information by its own efforts. (Ellis Decl. I, ¶ 19.) Abernathy alleges that as a result of the termination of the distributorship and competition from Fluid Flow, it was able to replace only a small amount of its Pall business and had to lay off five or six employees in the year or so after the termination. (Ellis Dep. at 112, 118, 214-217.) A final claimed consequence of the termination was that another manufacturer with which Abernathy had a distributorship agreement, a company called Ther-mon, terminated its contract with Abernathy out of fear that without the Pall contract, Abernathy would not be able to maintain a large enough sales force to service its distribution needs. (Ellis Decl. I, ¶ 16.) At the time of his deposition, Jim Ellis was unable to quantify how much Abernathy lost in profits because of the termination and its aftermath, (Ellis Dep. at 96, 111), though in a subsequent declaration Ellis estimated Abernathy’s total lost profits at $250,000 per annum, (Ellis Decl. I, ¶ 21). (10) The final issue raised in this action concerns an alleged unwritten incidental commission agreement relating to certain filters used in nuclear power plants. (Reply ¶¶ 15-16; Ellis Dep. at 121-22, 281-850 Abernathy claims that pursuant to this agreement, Pall required it to store an excess.,inventory of nuclear filters during the late 1980s. (Ellis Dep. at 282-83.) Pertinently, Pall accounted for nuclear filters sent to its distributors as sales as soon as they were shipped to the distributor. (Festa Dep. at 95.) Abernathy’s Ellis alleges that Pall used this storage arrangement and accounting convention to artificially inflate the sales figures reported in its annual financial statements. (Ellis Dep. at 282-83.) Later, when a customer actually ordered the nuclear filters, Abernathy would send the invoiced filters back to Pall, which would then ship them to the customer. (Id. at 121-22.) In return for facilitating this scheme, Pall allegedly promised to pay Abernathy an extra five percent commission, in addition to the regular commission specified in the Agreement. (Id. at 281, 283.) Abernathy further charges that this practice was in violation of regulations promulgated by the Nuclear Regulatory Commission (“NRC”) which require that certain filters used in nuclear reactors be shipped directly from the manufacturer to the customer in order to ensure that the filters have not deteriorated on the shelf. (Id. at 121-22; see also Festa Dep. at 87-88 (stating that NRC “regulations require that [this type of filter] come directly from the manufacturer of the product”).) In its motion papers, Pall denies that it had any such side agreement with Abernathy. (Def.’s Mem. Opp’n Pl.’s Mot. Summ. J. & Supp. Def.’s Cross-Mot. Summ. J. at 3-4 [hereinafter Def.’s Mem. Opp’n].) In deposition, however, Pall’s Festa conceded the existence of an arrangement whereby Pall stored nuclear filters at Abernathy’s facilities and then required Abernathy to the ship the filters back to Pall for inspection before shipping them to the customer. (Festa Dep. at 87-89, 92-95.) Moreover, although Festa could not recall whether Pall had promised to pay Abernathy an extra commission for storing the nuclear filters, he testified that it was “possible.” (Id. at 161.) Festa stated that the purpose of the arrangement was to ensure that nuclear filters could be sent out to its customers as quickly as possible. (Id. at 94.) In light of Festa’s admission that Pall had sufficient warehouse space to store the filters at its own facilities, (id. at 94), this explanation makes no sense. Obviously, Pall’s arrangement increased the amount of time required to get the filters to customers by the amount of time that it took for the distributor to ship the filters back to Pall. At any rate, shortly after the termination, Abernathy contacted Pall, requesting payment of special nuclear filter commissions that were allegedly owed but unpaid as of the date of termination. (Ellis Decl. of 8/9/99 [hereinafter Ellis Decl. II], Ex. 11, Memo from Ellis to Rapone of 4/8/93.) A volley of correspondence followed, (id., Exs. 9-11), and on April 19, 1993, Pall took the position that it owed Abernathy no more than $4,745.56 on the account, (id., Ex. 10). Abernathy disputes this figure and now seeks $62,867.00, which it claims Pall still owes it. (Id. ¶ 21.) Discussion In its First Amended Complaint, plaintiff pled five causes of action: (1) fraud, (2) misuse of proprietary information, (3) unfair competition, (4) tortious interference with contract, and (5) breach of fiduciary duty. In its Answer, defendant interposed counterclaims for a debt owed and for breach of contract. Finally, in its Reply to defendant’s Answer to its Amended Complaint, plaintiff makes a claim for special commissions due on the storage of certain nuclear filters. Defendant moves for summary judgment on all claims, and plaintiff cross-moves for partial summary judgment on its nuclear filter commissions claim and defendant’s counter-claims. Each claim is discussed below, with the misuse of proprietary information and unfair competition claim analyzed together. (1) Abernathy’s cause of action for fraud encompasses two distinct claims. First, Abernathy alleges that, contrary to Pall’s representations at Renew in ’92 and in the Festa Memo, Pall never intended to offer Abernathy a long-term contract even if Abernathy met the stated conditions. Second, Abernathy asserts that Pall had made the decision to terminate Abernathy in or before July of 1992 but fraudulently concealed this fact from Abernathy. Abernathy charges that in both instances Pall’s fraudulent misrepresentations and omissions were motivated by a desire to extract additional customer information from Abernathy before terminating Abernathy’s distributorship. Pall moves for summary judgment on both claims, which are discussed separately below. a. Applicable Law As an initial matter in this diversity action, the governing law must be determined. Because both parties have relied exclusively on New York law in their briefs, they have tacitly consented to the application of New York law, and no further conflict of laws analysis need be conducted. See 3Com Corp. v. Banco do Brasil, S.A., 171 F.3d 739, 743 (2d Cir.1999). Accordingly, New York law will be applied to all claims herein. See id. To prove common law fraud under New York law, a plaintiff must show that: (1) the defendant made a material false representation; (2) the defendant intended to defraud the plaintiff thereby; (3) the plaintiff reasonably relied upon the representation; and (4) the plaintiff suffered damage as a result of such reliance. See Independent Order of Foresters v. Donald, Lufkin & Jenrette, Inc., 157 F.3d 933, 940 (2d Cir.1998); Banque Arabe et Internationale D’Investissement v. Maryland Natl Bank, 57 F.3d 146, 153 (2d Cir.1995), Under New York law, each element of a fraud claim must be shown by clear and convincing evidence. See Gaidon v. Guardian Life Ins. Co. of Am., 94 N.Y.2d 330, 349-50, 704 N.Y.S.2d 177, 186, 725 N.E.2d 598 (1999); Vermeer Owners, Inc. v. Guterman, 78 N.Y.2d 1114, 1116, 578 N.Y.S.2d 128, 129, 585 N.E.2d 377 (1991); Banque Arabe, 57 F.3d at 153. Clear and convincing evidence is evidence that makes the fact to be proved “highly probable.” 1A New York Pattern Jury Instructions — Civil § 1:64 (3d ed.1999). Accordingly, Pali’s motion for summary judgment must be granted if Abernathy has not produced evidence on which a reasonable jury could find that Abernathy has proven each element of its fraud claim by “clear and convincing evidence” as defined by New York law. See Liberty Lobby, 477 U.S. at 255-56, 106 S.Ct. at 2514. To establish fraudulent concealment under New York law, a plaintiff must prove that: (1) the defendant failed to disclose material information that it had a duty to disclose; (2) the defendant intended to defraud the plaintiff thereby; (3) the plaintiff reasonably relied upon the omission; and (4) the plaintiff suffered damage as a result of such reliance. See Bermuda Container Line Ltd. v. International Longshoremen’s Ass’n, AFL-CIO, 192 F.3d 250, 258 (2d Cir.1999) (citing Nasaba Corp. v. Harfred Realty Corp., 287 N.Y. 290, 295, 39 N.E.2d 243, 245 (1942)); Banque Arabe, 57 F.3d at 153. As’with fraudulent misrepresentation claims, the plaintiff must prove each element of fraudulent concealment by clear and convincing evidence. See Kuo Feng Corp. v. Ma, 248 A.D.2d 168, 168-69, 669 N.Y.S.2d 575, 576 (1st Dep’t 1998); Board of Educ. v. Sargent, Webster, Crenshaw & Folley, 146 A.D.2d 190, 199, 539 N.Y.S.2d 814, 820 (3d Dep’t 1989); Chase Manhattan Bank, N.A. v. T & N PLC, 1998 WL 634218, at *2, 162 F.3d 1147 (2d Cir.1998) (Table); Banque Arabe, 57 F.3d at 153. b. Renew in ’92 and the Long Term Contract Abernathy’s fraud claim based on the promise of a long-term contract at Renew in ’92 and in the Festa Memo must be dismissed because Abernathy has not produced evidence upon which a reasonable jury could find by clear and convincing evidence that the promise to negotiate a long-term contract with distributors who met its requirements was false when made. Where a cause of action for fraud is based on a defendant’s statement of future intention, in order to prove the element of misrepresentation, plaintiff must show that the defendant, at the time the promissory representation was made, never intended to honor or act on his statement. See Boylan v. G.L. Morrow Co., 63 N.Y.2d 616, 619, 479 N.Y.S.2d 499, 500, 468 N.E.2d 681 (1984); Lanzi v. Brooks, 43 N.Y.2d 778, 779-80, 402 N.Y.S.2d 384, 384, 373 N.E.2d 278 (1977); G & F Assocs. Co. v. Brookhaven Beach Health Related Facility, 249 A.D.2d 441, 443, 671 N.Y.S.2d 510, 511-12 (2d Dep’t 1998); Non-Linear Trading Co. v. Braddis Assocs., Inc., 243 A.D.2d 107, 118, 675 N.Y.S.2d 5, 13 (1st Dep’t 1998). The mere fact that Abernathy was not given a long-term contract is, as a matter of law, insufficient to establish that Pall fraudulently misrepresented its intentions. See Getty Petroleum Corp. v. Delorio, 194 A.D.2d 762, 763, 599 N.Y.S.2d 829, 831 (2d Dep’t 1993); Lanzi v. Brooks, 54 A.D.2d 1057, 1058, 388 N.Y.S.2d 946, 948 (3d Dep’t 1976), aff'd, 43 N.Y.2d 778, 402 N.Y.S.2d 384, 373 N.E.2d 278 (1977); Brown v. Lockwood, 76 A.D.2d 721, 732-33, 432 N.Y.S.2d 186, 195 (2d Dep’t 1980) (“Fraudulent intent not to perform a promise cannot be inferred merely from the fact of nonperformance.... ”). Plaintiff must produce additional evidence of a present fraudulent intent to carry its burden of proof. See Lockwood, 76 A.D.2d at 733, 432 N.Y.S.2d at 195. 'In its motion papers, Abernathy strenuously argues that it met the conditions for the award of a long-term contract recited in the Festa Memo. (See, e.g., Pl.’s Mem. Opp’n I, at 4-6.) However, as just noted, the fact that a promissory representation is not fulfilled does not suffice to prove that the representation was fraudulent when made. Therefore, Abernathy’s fraud claim can survive summary judgment only if it produces additional proof that Pall acted with an intent to deceive when it made the representations regarding the long-term contract at Renew in ’92 and in the Festa Memo. Far from producing such additional proof, Abernathy’s Ellis and Prevatte admitted in deposition that they had no basis for their allegation that Pall never intended to offer Abernathy a long-term contract: Q Subsequent to your termination or subsequent to this Renew meeting, did you ever learn of any facts that led you to believe that Pall did not intend to offer long-term contracts when it made that suggestion at that Renew meeting? A No. (Ellis Dep. at 101-02), Q ... At the time of the Renew in ’92 program when the issue of long-term contract was discussed, did you have any reason to believe that Pall never intended to offer a long-term contract to Abernathy-Thomas? A No. Q And at the time you received and reviewed [the Festa memo], did you have any reason to believe that Pall never intended to offer a long-term contract to Abernathy-Thomas? A No. Q At any point prior to being notified of the termination, did you have any reason to believe that Pall never intended to offer Abernathy-Thomas a distribution agreement, a long-term distribution agreement? A No. (Prevatte Dep. at 65). The only evidence that Abernathy cites in support of its claim is Rapone’s statement that, as of the time he retired from Pall in 1993, Pall had awarded long-term contracts to only two of its sixty distributors. (Monack Decl. of 9/14/99, ¶ 10 (citing Rapone Dep. at 208-09).) If this fact were coupled with evidence showing that many of the other fifty-seven distributors that did not get a long-term contract also met the stated requirements for the contract, such combined evidence might create a triable issue on the question of fraudulent intent. Abernathy, however, has not produced any such evidence. In the absence of such a showing, a reasonable jury could not find that Abernathy has proven a present fraudulent intent by clear and convincing evidence, i.e., proven that it was highly probable that Pall intended to deceive Abernathy when it made its promises at Renew in ’92 and in the Festa Memo. Accordingly, Pall’s motion for summary judgment on plaintiffs long-term contract fraud claim is granted. c. The alleged concealment of the decision to terminate Abernathy As an independent act of fraud, or, to be more accurate, fraudulent concealment, Abernathy claims that Pall had made the decision to terminate Abernathy in July of 1992 or earlier but concealed that fact from Abernathy in order to extract additional information from Abernathy on its customers. Abernathy claims that it would not have signed the SITES amendment in January of 1993 and would have taken steps to prepare its other principals and its customers for the loss of the Pall contract if it had known Pali’s decision at an earlier date. (Pl.’s Mem. Opp’n I, at 7-8.) Pall, on the other hand, claims that it began to look for a replacement for Abernathy only about a month before Abernathy was terminated. Pall further claims that it did not make the final decision to terminate Abernathy until it found a replacement, which was just a few days before it sent notice to Abernathy. See supra Background (8). ' Leaving aside the question of whether Pall had any duty to disclose its intentions to Abernathy over and above the thirty-day notice set forth in the Exclusive Distribution Agreement and the Sales Representative Agreement, Abernathy has not produced clear and convincing evidence that Pall in fact made the decision to terminate Abernathy at any time before the date of the SITES amendment, viz., January 18, 1993. During his deposition, Abernathy’s Jim Ellis referred to a file memorandum from the week of July 13, 1992, in which he noted that Les Kefauver, an Abernathy sales manager, told him that a Pall employee, Lee Clark (“Clark”), had, in turn, told him that Pall had decided to terminate Abernathy. (Ellis Dep. at 152-53; Letter from Plaintiffs Counsel to Chambers of 5/18/00.) Apparently in an effort to substantiate this claim by way of non-hearsay evidence, Abernathy’s counsel drafted a declaration for Clark to sign which recited that Pall had made the decision to terminate Abernathy between May and July of 1992. Clark signed the declaration but — tellingly—crossed out the language to the effect that the decision had been made by July 1992. Instead, Clark stated in a handwritten note only that two other Pall employees had told him “at Regional Managers’ meetings and in casual conversation during 1992 that Abernathy-Thomas sales performance was being criticized and that Pall was considering terminating Pall’s relationship with Abernathy.” (Clark Decl. ¶ 3 (emphasis added.)) So corrected, Clark’s declaration is entirely consistent with Ellis and Pre-vatte’s testimony that Pall had been expressing dissatisfaction with the volume of Abernathy’s sales, as well as the size and training of Abernathy’s sales force, from 1990 onward and particularly in 1992. (Ellis Dep. at 16-17, 60-65, 126, 156-59, 226; Prevatte Dep. at 16-18, 20, 22-23, 34-36, 85-88.) The Clark declaration simply does not provide clear and convincing evidence upon which a reasonable jury could find that the decision to terminate Abernathy occurred in or before July 1992 and that Pall intentionally concealed this decision from Abernathy until February 11, 1993. Abernathy also points to the September 23, 1992 meeting between Prevatte, Festa and Rapone, see supra Background (6), in an effort to buttress its claim that Pall deceived Abernathy regarding its alleged intention to terminate Abernathy. (Pl.’s Mem. Opp’n I, at 6.) Accepting Abernathy’s account of the meeting as true for the purposes of this motion, see supra note 8, Festa and Rapone’s denials that Pall had any problem with Abernathy at the time does not support Abernathy’s claim of fraudulent concealment. The argument that those denials do support a finding of fraudulent concealment, presupposes that the decision to terminate had already been made. However, as evidence of that supposition, Abernathy again only cites the Clark declaration. (Pl.’s Mem. Opp’n I, at 6.) But, as just discussed, the Clark declaration does not provide the clear and convincing evidence required to establish that the decision to terminate was made at any time in 1992. Moreover, in their depositions, Ellis and Prevatte candidly admitted that they had no other basis for their claim that Pall had made the decision to terminate Abernathy long before it gave Abernathy the contractually-required thirty days notice on February 11,1993: Q Did you ever learn any information that indicated when Pall had made that decision to terminate Abernathy? A No. Q Did you ever learn any information indicating that they had made the decision to terminate Abernathy back in 1992? A No. (Ellis Dep. at 120), Q Did you ever learn any information to indicate to you when it was that Pall made the determination to terminate Abernathy-Thomas? A No. Q Did you ever learn any information to indicate that Pall had made a determination to terminate Abernathy-Thomas in 1992 prior to announcing that to Abernathy-Thomas in February 1993? A No. (Prevatte Dep. at 66). In light of these admissions and the text of the Clark declaration as sworn to, Abernathy has not produced evidence on which a reasonable jury could find that Abernathy has shown by clear and convincing proof that Pall made the decision to terminate Abernathy prior to the SITES amendment in January of 1993. Apparently as a fall back argument, Abernathy claims that if Pall had disclosed that it was at least “considering” termination in 1992 (as Clark stated in his corrected declaration), Abernathy would have taken steps to reassure its other principals that it would still be able to meet their needs even if it lost the Pall contract. (Pl.’s Mem. Opp’n I, at 7.) This argument, too, fails. As noted above, damages are an essential element of a fraud claim under New York law. It is well-settled under New York law that a fraud action cannot be maintained where the damages attributable to the fraud are speculative or undet-erminable. See Lama Holding Co. v. Smith Barney, Inc., 88 N.Y.2d 413, 422, 646 N.Y.S.2d 76, 80, 668 N.E.2d 1370 (1996); Dress Shirt Sales, Inc. v. Hotel Martinique Assocs., 12 N.Y.2d 339, 344, 239 N.Y.S.2d 660, 664, 190 N.E.2d 10 (1963); Geary v. Hunton & Williams, 257 A.D.2d 482, 482, 684 N.Y.S.2d 207, 207 (1st Dep’t 1999); Giambrone v. Bank of N.Y., 253 A.D.2d 786, 787, 677 N.Y.S.2d 608, 610 (2d Dep’t 1998). Abernathy, however, has produced no evidence — much less clear and convincing evidence — that if it had taken steps to reassure its other principals, those principals’ fears would have been allayed and they would not have terminated their contracts with Abernathy. Indeed, for all that Abernathy has shown, its principals’ reaction could have been just the opposite: if Abernathy had disclosed the possible loss of the Pall contract earlier, then to protect themselves Abernathy’s principals might just as well have terminated their contracts with Abernathy earlier than they actually did, thus increasing Abernathy’s losses. Abernathy’s alternative concealment argument, therefore, is not sufficiently supported by admissible evidence to send the fraudulent concealment claim to the jury. (2) In Counts II and III of the First Amended Complaint, Abernathy pleads causes of action for misuse of proprietary information and unfair competition, respectively. (First Am. Compl. ¶¶ 18-20.) The unfair competition claim is, however, based on “Pall’s wrongful disclosure of Abernathy’s proprietary information to Fluid Flow,” and thus essentially restates the misuse of proprietary information claim. (Id. ¶ 20.) The two counts will, therefore, be treated as stating a single cause of action. See CBS Corp. v. Dumsday, 268 A.D.2d 350, -, 702 N.Y.S.2d 248, 251 (1st Dep’t 2000); Eagle Comtronics, Inc. v. Pico Prods., Inc., 256 A.D.2d 1202, 1203, 682 N.Y.S.2d 505, 506 (4th Dep’t 1998). a. Applicable Law To prove a claim for the misappropriation of proprietary information under New York law, plaintiff must show (1) that the information constituted a trade secret, and (2) that the defendant used that trade secret (3) in breach of an agreement, a confidential relationship or duty, or as a result of discovery by improper means. See North Atlantic Instruments, Inc. v. Haber, 188 F.3d 38, 43-44 (2d Cir.1999); Hudson Hotels Corp. v. Choice Hotels Int’l, 995 F.2d 1173, 1176 (2d Cir.1993). A trade secret is “ ‘any formula, pattern, device or compilation of information which is used in one’s business, and which gives the owner an opportunity to obtain an advantage over competitors who do not know or use it.’ ” Ashland Management Inc. v. Janien, 82 N.Y.2d 395, 407, 604 N.Y.S.2d 912, 918, 624 N.E.2d 1007 (1993) (quoting Restatement of Torts § 757 cmt. b (1939)); accord North Atlantic Instruments, 188 F.3d at 44. In determining whether information constitutes a trade secret, New York courts consider the following factors: (1) the extent to which the information is known outside of the business; (2) the extent to which it is known by employees and others involved in the business; (3) the extent of measures taken by the business to guard the secrecy of the information; (4) the value of the information to the business and its competitors; (5) the amount of effort or money expended by the business in developing the information; [and] (6) the ease or difficulty with which the information could be properly acquired or duplicated by others. Ashland Management, 82 N.Y.2d at 407, 604 N.Y.S.2d at 918, 624 N.E.2d 1007 (quoting Restatement of Torts § 757 cmt. b (1939)); accord North Atlantic Instruments, 188 F.3d at 44. A customer list developed by a business through substantial effort and kept in confidence may be treated as a trade secret and protected at the owner’s instance against disclosure to a competitor provided the information it contains is not otherwise readily ascertainable. See Leo Silfen, Inc. v. Cream, 29 N.Y.2d 387, 392-93, 328 N.Y.S.2d 423, 427-28, 278 N.E.2d 636 (1972); North Atlantic Instruments, 188 F.3d at 44. The question of whether or not a customer list is a trade secret is generally a question of fact. See Ashland Management, 82 N.Y.2d at 407, 604 N.Y.S.2d at 918, 624 N.E.2d 1007; North Atlantic Instruments, 188 F.3d at 44. b. Pall used a trade secret possessed by Abernathy. Abernathy has alleged that the customer information it supplied to Pall — which included not only the identity of its customers but also their filter change-out dates— was highly valuable and that it would have taken as many as two years for a new distributor to duplicate the information. Pall has not disputed this time estimate in its papers, and, indeed, the very raison d’etre of its SITES program was a recognition of the commercial value of knowing its customers’ change-out dates. Moreover, at oral argument, counsel for Pall expressly conceded that this information was valuable and that it would take a substantial amount of time to develop. (Tr. at 14-15.) Finally, Abernathy’s Jim Ellis declared that Abernathy maintained this information as confidential with respect to third-parties. (Ellis Decl. II, ¶ 7.) Therefore, on the evidence now before the court, a reasonable jury could find that Abernathy’s customer information constituted a trade secret as defined by New York law. As for the element of use, Pall argues that even if Abernathy’s customer information qualifies as a trade secret, Abernathy has produced no evidence that Pall actually gave Fluid Flow Abernathy’s customer information. However, Pall’s Festa admitted during his deposition that SITES information was given to Fluid Flow when it signed on as Pall’s new distributor in the Territory. (Festa Dep. at 85-86.) Thus, while it is unclear on the present record exactly how much of Abernathy’s customer information was supplied to Fluid Flow, a reasonable jury could find that Pall disclosed at least some of Abernathy’s customer information to Fluid Flow and, hence, that Abernathy has met its burden of proving misuse of its trade secrets. c. Abernathy stood in a confidential relationship with Pall, pursuant to which Pall owed Abernathy a duty of fidelity. There has been, and can be, no suggestion that Pall discovered Abernathy’s customer information through improper means (e.g., industrial espionage), inasmuch as Pall obtained the information directly from Abernathy, with Abernathy’s knowledge and consent, pursuant to a contractual obligation that required it to supply Pall with that information. The dis-positive issue with respect to Abernathy’s trade secrets claim is, therefore, whether Pali’s use of Abernathy’s customer information constituted a breach of a confidential relationship with or duty owed to Abernathy. As an initial matter, it is clear that Pall did not have a contractual duty to keep Abernathy’s customer information in confidence. The Agreement between Pall and Abernathy contains no express confidentiality clause in favor of Abernathy, and Abernathy’s management conceded in deposition that Pall never orally agreed to keep the information in confidence. Plaintiffs cause of action for misappropriation of its trade secrets, thus, reduces to the question of whether a confidential relationship existed between the parties that gave rise to a legal duty on defendant’s part not to use that information to the detriment of plaintiff — in short, whether the factual contours of their relationship created a duty of fidelity on defendant’s part. This inquiry encompasses two distinct questions, one of law and one of fact. The first question — whether, given the facts regarding the two companies’ relationship alleged by plaintiff, defendant owed plaintiff a duty — is a question of law for the court to determine. See Kimmell v. Schaefer, 89 N.Y.2d 257, 263, 652 N.Y.S.2d 715, 718, 675 N.E.2d 450 (1996); Palka v. Servicemaster Management Servs. Corp., 83 N.Y.2d 579, 585, 611 N.Y.S.2d 817, 820, 634 N.E.2d 189 (1994); Eiseman v. State, 70 N.Y.2d 175, 187, 518 N.Y.S.2d 608, 613, 511 N.E.2d 1128 (1987). The second — whether the facts of the relationship were as plaintiff alleges — is a question of fact for the jury. See Kimmell, 89 N.Y.2d at 263, 652 N.Y.S.2d at 718, 675 N.E.2d 450. Thus, on this motion for summary judgment, the court must resolve two questions: (1) accepting plaintiffs factual allegations regarding its relationship with Pall as true, did Pall owe Abernathy a duty as a matter of law?, and (2) on the evidence presented to the court, could a reasonable jury find that the facts of the relationship were as Abernathy alleges? Both questions are answered in the affirmative. Under New York law, a “distributorship agreement may, in some rare instances, create a confidential relationship out of which duty of fiduciary care arises.” Lake Erie Distributors, Inc. v. Martlet Importing Co., 221 A.D.2d 954, 955, 634 N.Y.S.2d 599, 601 (4th Dep’t 1995) (citing AS. Rampell, Inc. v. Hyster Co., 3 N.Y.2d 369, 165 N.Y.S.2d 475, 144 N.E.2d 371 (1957); Zimmer-Masiello, Inc. v. Zimmer, Inc., 159 A.D.2d 363, 552 N.Y.S.2d 935 (1st Dep’t), appeal dismissed, 76 N.Y.2d 772, 559 N.Y.S.2d 986, 559 N.E.2d 680 (1990)); see also Guard-Life Corp. v. S. Parker Hardware Mfg. Corp., 50 N.Y.2d 183, 194, 428 N.Y.S.2d 628, 634, 406 N.E.2d 445 (1980) (noting that duty of fidelity may arise from a relationship of confidence and citing Rampell); cf. W. Walley, Inc. v. Saks & Co., 266 A.D. 193, 198, 41 N.Y.S.2d 739, 743 (1st Dep’t 1943) (relationship between department store and credit card issuer that supplied information on its customers to department store was one of confidence); Matter of Sbarro Holding, Inc., 111 Misc.2d 910, 913, 445 N.Y.S.2d 911, 914 (1981) (relationship between large corporate franchisor and individual franchisee was one of confidence), aff'd, 91 A.D.2d 613, 456 N.Y.S.2d 416 (2d Dep’t 1982). In Rampell, the New York Court of Appeals denied a manufacturer’s motion to dismiss a former distributor’s complaint for the misappropriation of the distributor’s sales staff and goodwill, holding that on the facts alleged by the distributor, a confidential relationship had arisen between the two. See Rampell, 3 N.Y.2d at 377, 165 N.Y.S.2d at 482, 144 N.E.2d 371. The Rampell distributor alleged that it had been the defendant manufacturer’s exclusive distributor in a particular territory for fifteen years and that it had expended substantial amounts of money, time and effort to develop, and had in fact developed, a sales organization and market for the manufacturer’s products. See id. at 374, 165 N.Y.S.2d at 480, 144 N.E.2d 371. The relationship was brought to an abrupt end when the manufacturer terminated the distributorship agreement, hired the plaintiffs key sales people, and began direct sales in the former distributor’s territory. See id. at 375, 165 N.Y.S.2d at 480, 144 N.E.2d 371. In deciding whether the manufacturer’s inducement of the distributor’s employees to terminate their employment agreements with the distributor was tortious, the Court of Appeals first observed that the relationship between a distributor and a manufacturer is generally not a relationship of “economic equals,” but rather a relationship “which is recognized to be that of dependency of the latter upon the former.” Id. at 376, 165 N.Y.S.2d at 481, 144 N.E.2d 371 (citations omitted). The court warned, however, that “[t]his dominance taken alone may be insufficient to show such a relation of confidence as would make the action by [the manufacturer] here actionable.” Id. The Court of Appeals found additional facts sufficient to support a finding of a confidential relationship where [pjursuant to the contract ..., plaintiff was obliged to make its lists of prospective customers available to [the manufacturer]; to keep records of its demonstrating, canvassing and soliciting available to [the manufacturer]; to give [the manufacturer] reports on its inventory and its financial condition, or ‘any other information regarding [the distributor’s] business which may be reasonably required by [the manufacturer].’ Id. at 377, 165 N.Y.S.2d at 482, 144 N.E.2d 371. On the basis of similar allegations, the Appellate Division found that a confidential relationship existed between manufacturer and distributor in Zimmer. The Zimmer plaintiff had acted as the exclusive distributor of the defendant’s surgical equipment and orthopedic supplies. See Zimmer, 159 A.D.2d at 364, 552 N.Y.S.2d at 936. After an eleven-year relationship, the manufacturer terminated the distribution agreement, hired many of the distributor’s employees, and began direct sales to the distributor’s former customers. See id. The Appellate Division found that the plaintiff distributor had established the existence of a fiduciary duty on the part of the manufacturer where [t]he manufacturer ... maintained a position of dominance and the plaintiff was dependent on Zimmer during the relationship of more than 11 years. Zimmer dictated the size of Masiello’s territory, prices and commissions, and, as in Ram-pell, exploited the same type of confidential and proprietary information which Masiello was required to provide Zim-mer pursuant to agreement. Id. at 365, 552 N.Y.S.2d at 937. Whether Abernathy’s allegations regarding the nature of its relationship with Pall are sufficiently analogous to those in Rampell and Zimmer to support a finding that the relationship was one of confidence is a close question. In some respects the facts of this case (as alleged by Abernathy) are stronger than in Rampell and Zim-mer, and in other respects, weaker. However, viewed as a whole they are sufficient to establish that the relationship between Pall and Abernathy was confidential in nature and gave rise to a duty on Pall’s part not to misuse Abernathy’s proprietary customer information to Abernathy’s detriment. As in Rampell and Zimmer, the Exclusive Distribution Agreement imposed on Abernathy an obligation to report to Pall all of its sales of Pall products, the names and addresses of Abernathy’s customers, and the types of filters they used. In addition, pursuant to a long-standing extra-contractual practice, Pall employees frequently accompanied Abernathy salespeople on customer visits, thus giving Pall direct access to the identity of the appropriate contact people at Abernathy’s customers, as well as an opportunity to assess those customers’ potential future needs for filtration products. Finally, pursuant to the SITES amendment, Abernathy was also required to supply Pall with coneededly valuable information on filter element change-out dates. Furthermore, these contractually-required disclosures took place over the course of a much longer-term relationship than existed in the Rampell and Zimmer cases, viz., forty or more years as opposed to fifteen and eleven years, respectively. In addition, just as in Rampell, Abernathy has alleged that prior to its investment of substantial money, time and effort, Pall had a few sales in the territory Abernathy covered. Finally, the evidence submitted on this motion confirms the Court of Appeals’s general suppositions that a manufacturer enjoys a position of dominance over the distributor and that the two do not bargain at arms length: sales of Pall products constituted the bulk of Abernathy’s revenues, and Pall was, therefore, able to place numerous demands on Abernathy over the years, including an alleged requirement that Abernathy help facilitate a potentially illegal scheme to inflate Pall’s publicly-reported sales figures, see supra Background (10); infra Discussion (5). On the other hand, the acts constituting the alleged breach of the confidential relationship in this case are, of course, far less egregious than those in Rampell or Zim-mer. Pall did not usurp any of Abernathy’s employees; nor did it commence direct sales after the termination. Instead, Pall only hired another distributor, and Abernathy has not produced any evidence to suggest that Pall terminated Abernathy for any reason other than a desire to have a better distributor in the Territory. The crucial lesson of Rampell and Zimmer for this case, however, is that a long-standing distributorship relationship in which the manufacturer dominated the distributor, and pursuant to which the distributor was contractually required to disclose proprietary information regarding its customers to the manufacturer, creates a duty on the part of the manufacturer not to use that information to the detriment of the distributor. Thus, while the equities of this case are much less compelling than in Rampell or Zimmer, the fact that the manufacturer’s duty of fidelity was breached in a different manner in this case is irrelevant for the purposes of establishing whether such a duty existed in the first place. In light of the foregoing, the second question posed by the present motion— whether a reasonable jury could find that Pall and Abernathy did in fact stand in the type of confidential relationship described in Rampell and Zimmer — almost answers itself. Pall has not disputed any of the facts relevant to the question of whether a confidential relationship existed between the two companies, e.g., the length of the relationship, Abernathy’s efforts to develop customers for Pali’s products, or the fact that Pall contractually required Abernathy to turn over its customer information. Accordingly, Abernathy’s trade secrets claim is sufficiently well-supported as a matter of both law and fact to present a triable issue for the jury. d. The Exclusive Distribution Agreemen