Full opinion text
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT LAWSON, District Judge. Although it has been said that imitation is the highest form of flattery, Dr. Randy L. Wysong, a doctor of veterinary medicine, took offense when a former consultant, Scott Freeman, left the Wysong Corporation to join co-defendant M.I. Industries in developing and marketing a line of pet foods allegedly copying the “healthy pet diet” concept that Dr. Wysong developed. Wysong Corporation filed a complaint in this Court alleging claims of misappropriation of trade secrets, conspiracy, unjust enrichment, breach of fiduciary duty, and deceptive packaging. Wysong Corporation alleges that M.I. Industries and Freeman took unfair advantage of negotiations for the sale of Wysong Corporation by stealing trade secrets and creating a line of premium pet food that unfairly uses elements of Wysong Corporation’s product trade dress. Defendants M.I. and Freeman have filed a motion for summary judgment contending that Wysong Corporation’s putative trade secrets are publically available, they had no access to the alleged trade secrets, the plaintiffs intellectual property rights are not protectable, they received no unjust benefit from the plaintiff, and they owed no duty to the plaintiff. The defendants further. argue that the misappropriation claim under Michigan’s Uniform Trade Secrets Act (MUTSA) displaces all of the other claims, and there is no genuine issue of material fact on any of the plaintiffs claims. The motion does not challenge the plaintiffs claim based on a breach of duty of loyalty that was added by amendment after the defendants filed the motion. The Court heard arguments from the parties in open court on September 11, 2003 and allowed supplemental filings thereafter. The Court now finds that the defendants are entitled to judgment as a matter of law on the claims for misappropriation on grounds of pet food concepts, marketing information, packaging information, and customer information; breach of fiduciary duty as to defendant M.I. Industries; and confusingly similar trade dress. However, material fact issues preclude summary judgment on the claims of misappropriation of financial and supplier information; unjust enrichment; conspiracy; and breach of fiduciary duty as to Freeman. Therefore, the Court will grant the defendants’ motion in part and deny it in part. I. Facts Randy L. Wysong, D.V.M. holds himself out as a leading expert in the premium pet food industry. He developed a “healthy pet diet” concept that consists of the idea of feeding animals with a rotating diet of a various of raw, fresh meats and vegetables instead of supplemented processed foods, which are common in the industry. Defs.’ Br. Summ. J. Ex. 4, Wysong Corp. Sales Literature at 32; Defs.’ Reply Br. Ex. 10, Dr. Wysong Dep. at 69-72. Dr. Wysong has published extensively on the subject. Id. at 69-70. He owns the plaintiff Wysong Corporation, a company that manufactures pet foods adhering to his dietary precepts. Id. at 37. He teaches his concepts as a “logical framework,” marketable to consumers. Id. at 74. Wysong Corporation developed special packaging procedures known as “fresh batching, oxygen and light barrier packaging, [and] natural oxidants” to protect the freshness of food sold to consumers. Id. at 91-92. Among the plaintiffs products is a brand of horse food marketed as “Wysong Enhanced Forage.” Defs.’ Mot. Summ. J. Ex. 4, Wysong Corp. Sales Literature at 15. The plaintiff has confidentiality agreements in place with each one of its suppliers, Id. at 118— 119, and also requires employees to sign confidentiality agreements. Defs.’ Br. Summ. J. Ex. 4, E-mail to Scott Freeman (Sep. 13, 2000) at 68. The defendant, Scott Freeman, acted as a consultant and a representative for the plaintiff from January 1998 through August 2001. Freeman’s consulting/sales agreement provided that he would “assist Wysong Corporation with marketing, sales, and customers relations” beginning January 1, 1998. He was to be paid a monthly consulting fee that diminished over time as his compensation was augmented by commissions. He was identified as “an independent contractor not under the direct employment of [Wysong Corporation].” Defs.’ Supp. Br. Ex. 11, Consulting/Sales Agreement. Freeman held himself out to be the plaintiffs “National Sales Manager.” Second Amended Compl. Ex. A, Facsimile from Freeman to Mulligan (Dec. 3, 2000). The plaintiff provided Freeman marketing information, new product information, and customer and supplier information. Defs.’ Reply Ex. 10, Dr. Wysong Dep. at 107-108, 119-20. According to Dr. Wysong, he told Freeman in confidence about his intention to develop a line of premium pet food called “variety” and to describe a product with the term “Prairie Forage.” Id. at 67-69, 81-82. Dr. Wysong did not use the “variety” label because Freeman had advised that the term would have a bad impact on the market; Wysong. will not use the term in a product description now, he says, because the defendants began producing a “Nature’s Variety” pet food line in 2002. Id. at 67-69. Sometime in 1999, Dr. Wysong requested that Freeman find someone to purchase Wysong Corporation. PL’s Resp. Ex. E, Scott Freeman Dep. at 41. Thereafter, Freeman introduced the plaintiff to Robert Milligan, the president of defendant M.I. Industries (“M.I.”). The plaintiff and M.I. began purchase negotiations in 1999. M.I. agreed to a confidentiality agreement dated May 6, 1999 to facilitate the talks, which states in part: 1. Confidential Information. RW [Dr. Randy Wysong] shall deliver to MI certain information, which' may include, but not be limited to, financial information, copies of agreements, production and marketing plans, technical information, customer lists, and other information concerning RW’s conduct of his business. All of such information (“Confidential Information”) is confidential and proprietary to RW and his affiliates. 2. Obligations Relating to Confidential Information. With respect to the Confidential Information, MI warrants and represents the following: (a) MI will limit access to the Confidential Information to itself and to only those individuals who have a need for such access in order to enable MI to work with RW. Individuals within Mi’s organization and its attorneys and professional advisors will use the Confidential Information only for working with RW and MI and for no other purpose. (b) Upon request of RW, MI shall return all of the Confidential Information, including all copies thereof, and related materials prepared by MI and RW reflecting the Confidential Information. (c) MI and RW acknowledge that their businesses are unique, and agree that in no event will they make any use of the Confidential Information to develop or operate a business that is competitive with each other’s businesses and will not disclose the Confidential Information to anyone without each other’s-written authorization. 4. Nonapplicability. MPs’ánd RW’s obligations under this Agreement shall not apply to any information which: (a) was or becomes published, or can reasonably be considered part of the public domain; (b) was previously known by MI or RW prior to the receipt of such confidential information; or -(c) subsequent to disclosure, is obtained or developed by MI or RW or any affiliate or subsidiary of MI or RW through independent research without use of the disclosed information or from a third party having an independent right to disclose such .Confidential Information. Defs.’ Mot. Summ. J. Ex. 4,-Confidentiality Agreement (May 6, 1999) at 21-23. In addition, the plaintiff contends that M.I. entered into another confidentiality agreement dated on the next day, but only Dr. Wysong signed the document. Id., Confidentiality Agreement (May 7, 1999) at 20. The plaintiff alleges that Freeman agreed to essentially the same confidentiality agreement over a year after he started employment with the plaintiff. Freeman’s agreement, which is dated May 7, 1999, states: Scott Freeman desires financial and other business information from Wysong Corporation (WC) to determine the feasibility of purchasing parts of Wysong business. WC considers all information not published in Wysong literature, including even consideration to sell parts, to be sensitive and proprietary. Scott Freeman agrees to hold all such information confidential unless written authorization is given for specific named exceptions. If such exceptions are permitted, Scott Freeman will take full responsibility for then- adherence to this Agreement. All documents from WC and any copies will be deleted or returned immediately by Scott Freeman at WC’s request. WC will be entitled to damages for any unauthorized party receiving confidential WC information through Scott Freeman. Such relief to WC will not require proofs of financial loss by WC. Should breach of this agreement occur, and the parties are not able to resolve matters between them, WC and Scott Freeman agree to arbitration/mediation by the American Arbitration Association in Midland, MI. Id., Confidentiality Agreement (May 7, 1999) at 18. In addition to the Confidentiality Agreement, Dr. Wysong believed that he had both implicit and explicit agreements with Freeman to keep secret anything that Freeman did not discover in the public forum. PL’s Resp. Ex. B., Dr. Wysong Dep. at 120. The 1999 negotiations did not last long, but purchase negotiations resumed in the summer of 2000. Id. at 38. On September 15, 2000, Freeman signed another confidentiality agreement with the same terms as the agreement that he allegedly agreed to earlier. Def.’s Mot. Summ. J. Ex. 4, Confidentiality Agreement (Sep. 15, 2000) at 19. Freeman continued his sales and consulting work for the plaintiff throughout the purchase negotiations. PL’s Resp. Ex. E., Freeman Dep. at 8. In the summer of 2000, Freeman met with M.I. for the purpose of creating a business plan for M.I. to purchase the plaintiff. This was the only meeting between Freeman and M.I. during the negotiations. Id. at 42. Freeman advised M.I. of his beliefs about the status of the sale, the price of Wysong Corporation’s plant, and how best to approach Dr. Wysong to facilitate the sale. Second Amended Compl. Ex. B, E-mails. The plaintiff alleges that by December 2000 Freeman was secretly providing M.I. with confidential company information, including an estimated revenues for the 2000 calendar year and projected earnings for 2001. Id. Ex. A, Facsimile from Freeman to Mulligan (Dec. 3, 2000). By March of 2001, the defendants were secretly working on a line of products to compete with the plaintiff. Id., Ex. C, E-mails. During the summer of 2001, Freeman further advised M.I. that Wysong Corporation’s packaging did not accurately represent its products. Pl.’s Resp. Br. Ex. E., Freeman Dep. at 34. He believed that to adhere to the representations on Wysong Corporation’s packages the food required fresh meat ingredients, not meat meal. Ibid. He recommended that M.I. not proceed with the proposed purchase for that reason. Ibid. One e-mail Freeman sent to M.I. prior to an M.I. meeting with the plaintiff stated, “He [Dr. Wysong] is always talking about proprietary information, concerned that Wysong’s secrets will get out. This has to be linked with [b]ogus/untruthful ingredient lists,” and “[h]as problems with due diligence in providing documented proof of P & L.” Second Amended Compl. Ex. D, E-mail (May 15, 2001). . There is evidence that Dr. Wysong knew that Freeman was talking with M.I. about the deal-. Def.’s Mot. Summ. J. Ex. 4, E-Mail (Aug. 17, 2000) at 67-69. Dr. Wysong apparently attempted to maintain confidentiality by controlling what information he disclosed to Freeman and M.I. and warning Free-' man not do disclose secret information to M.I. Ibid. Purchase negotiations between the plaintiff and M.I. ceased in late 2001. M.I. told Dr. Wysong that it did not receive “enough financial information to place a value on the company,” such as tax return information. Defs.’ Reply Ex. 10, Dr. Wysong Dep. at 131-32. Apparently, the negotiations were not fruitless: the plaintiff alleges that M.I. produced some products for plaintiff from November 20, 2001 through December 12, 2001 and shipped orders for plaintiff from November 30, 2001 through February 8, 2002. Around the time the parties abandoned their negotiation efforts, Freeman withdrew from his employment contract with the plaintiff and went to work for M.I.; he formally started working for M.I. in September 2001. The defendants then allegedly began selling products and distributing advertising literature infringing Wysong Corporation’s trade dress, prompting the plaintiff to write a letter to its distributors urging them to refrain from working with the defendants. Defs.’ Mot. Summ. J. Ex. 6, Letter from PL to distributors (Feb. 14, 2002). A Wysong Corporation employee, Linda Due Yoder, stated in a deposition that several Wysong Corporation distributors telephoned Wysong Corporation in February 2002 to complain about Freeman. According to Yoder, Freeman solicited Wysong Corporation’s customers with products created by M.I. She alleges Freeman would offer to “throw on some Nature’s Variety onto the order with our, the Wysong order” when delivering Wysong Corporation’s product under the agreement between the two companies. PL’s Resp. Br. Ex. C, Linda Sue Yoder Dep. at 15-16. Dr. Wysong, in his deposition, stated that distributors told him that Freeman said his products were “just like Wysong or better” and M.I. would be spending millions of dollars on marketing. Defs.’ Reply Ex. 10, Dr. Wysong Dep. at 54. The plaintiff filed its complaint on June 17, 2002, and first amended complaint on October 3, 2002 alleging five counts: (1) misappropriation of trade secrets, (2) unjust enrichment, (3) conspiracy, (4) breach of fiduciary duty, and (5) “palming-off” products. The plaintiff alleges that the defendants improperly used confidential information provided by the plaintiff. Wysong Corporation’s putative trade secrets allegedly include: Dr. Wysong’s pet feeding concepts, terms Dr. Wysong contemplated using to brand his products, financial information, packaging techniques, and customer and supplier information. The plaintiff alleges that the defendants worked together to misappropriate trade secrets and create a competing product line and the defendants copied two specific packages, a product sold in a sealed pouch and another in a small “tub.” Dr. Wysong states that the defendants copied “the philosophy, the nutritional approach, ..., the selection of products, the way that the labels look, the selection of ingredients, the terminology on the food.” Defs.’ Reply Br. Ex. 10, Dr. Wysong Dep. at 88-90. The plaintiff lists various ideas and words allegedly “lifted” verbatim from Wysong Corporation’s products and advertising literature: Wysong Terms Defendants’ Terms Tundra Prairie Fresh Fresh Free Range Free Range Over 70 organic chelated minerals Over 70 organic chelated minerals Sprouts Sprouts No synthetic vitamins and minerals No synthetic vitamins and minerals 7 oz., 14 oz., 5# chubs 7 oz., 14 oz., 5# chubs Whole Whole Nature’s Choice Nature’s Variety Feed in “Variety” Variety Rotate Freely Rotate Freely Optimal Nutrition Optimal Nutrition Fresh meats Fresh meats Whole grainnot fractions Whole grainnot factions Heat sensitive ingredients Heat sensitive ingredients Dry enrobed Dry enrobed Probiotics Probiotics Enzymes Enzymes Herbal extracts Herbal extracts Oxygen barrier foil packaging Oxygen barrier foil packaging Fruit extracts Fruit extracts Natural source glucosamine, chondroitin, colostrum Natural source glucosamine, chondroitin, colostrum Whole Food Concentrate Whole Food Blend Rosemary & natui'al tocopherols Rosemary & natural tocopherols Cat litter Cat litter Enhanced Forage Prairie Forage Equine Equine Optimal Optimum Negative effects of heat processing Negative effects of heat processing Rotate diets Rotate diets Exclusive feeding has negative effects Exclusive feeding has negative effects Canine/Feline Canine/Feline PL’s Resp. Ex. F, Table of Terms. Finally, the plaintiff claims that the defendants are exploiting Freeman’s relationship with Wysong Corporation by publicizing Freeman’s position with Wysong Corporation in sales literature. The defendants filed counterclaims on October 3, 2002 alleging that the plaintiff and Dr. Wysong published false and defamatory statements about the defendants and intentionally interfered with a contract, business relationship, or expectancy of the defendants. However, the Court dismissed the counterclaims against Dr. Wysong on November 12, 2002 according to the parties’ stipulation. After the close of discovery, the defendants filed a motion for summary judgment on April 11, 2003. The defendants argue that Michigan’s Uniform Trade Secrets Act displaces all of the plaintiffs claims except the misappropriation claim and the plaintiff failed to present evidence showing issues of material fact on the other claims. The plaintiff then filed a response to the motion for summary judgment, and the Court heard oral argument on the motion for summary judgment on September 11, 2003. Subsequently, the Court authorized the plaintiffs filing of a second amended complaint dated September 19, 2003 and the defendants’ filing of a supplemental brief. The plaintiffs second amended complaint included a sixth count alleging a violation of duty of loyalty asserting allegations that Freeman secretly provided information concerning the sales negotiations and the plaintiffs products to enable the creation of a competing product line while Freeman still employed by Wysong Corporation. II. Discussion Although the defendants style their motion- in the alternative as a motion to dismiss, the liberal references to matters outside the pleadings preclude its consideration as such. See Michigan Paytel Joint Venture v. City of Detroit, 287 F.3d 527, 533 (6th Cir.2002) (holding that if matters outside the pleadings must be considered in ruling on the merits of the claim, the motion more properly should follow the standards and procedures of Rule 56, and reviewing courts generally will treat the motion as one for summary judgment). Therefore, the Court will treat the motion under - Federal Rule of Civil Procedure 56. A motion -for summary judgment under Rule 56 presumes the absence of a genuine issue of material fact for trial. The Court must view the evidence and draw all reasonable inferences in favor of the non-moving party, and determine “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)., The “[sjummary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed to secure the just, speedy and inexpensive determination of every action.” Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (internal quotes omitted). A fact is “material” if its resolution affects the outcome of the lawsuit. Lenning v. Commercial Union Ins. Co., 260 F.3d 574, 581 (6th Cir.2001). “Materiality” is determined by the substantive law claim. Boyd v. Baeppler, 215 F.3d 594, 599 (6th Cir.2000). An issue is “genuine” if a “reasonable jury could return a verdict for the nonmoving party.” Henson v. Nat’l Aeronautics & Space Admin., 14 F.3d 1143, 1148 (6th Cir.1994) (quoting Anderson, 477 U.S. at 248, 106 S.Ct. 2505). Irrelevant or unnecessary factual disputes do not create genuine issues of material fact. St. Francis Health Care Centre v. Shalala, 205 F.3d 937, 943 (6th Cir.2000). ‘Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party there is no genuine issue for trial.” Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Thus a factual dispute which “is merely colorable or is not significantly probative” will not defeat a motion for summary judgment which is properly supported. Kraft v. United States, 991 F.2d 292, 296 (6th Cir.1993); see also Int’l Union, United Auto., Aerospace and Agric. Implement Workers of Am. v. BVR Liquidating, Inc., 190 F.3d 768, 772 (6th Cir.1999). The party bringing the summary judgment motion has the initial burden of informing the district court of the basis for its motion and identifying portions of the record which demonstrate the absence of a genuine dispute over material facts. Mt. Lebanon Pers. Care Home, Inc. v. Hoover Universal, Inc., 276 F.3d 845, 848 (6th Cir.2002). The party opposing the motion then may not “rely on the hope that the trier of fact will disbelieve the movant’s denial of a disputed fact” but must make an affirmative showing with proper evidence in order to defeat the motion. Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir.1989). A party opposing a motion for summary judgment must designate specific facts in affidavits, depositions, or other factual material showing “evidence on which the jury could reasonably find for the plaintiff.” Anderson, 477 U.S. at 252, 106 S.Ct. 2505. If the non-moving party, after sufficient opportunity for discovery, is unable to meet his or her burden of proof, summary judgment is clearly proper. Celotex Corp., 477 U.S. at 322-23, 106 S.Ct. 2548. Once the defendants have pointed out the deficiencies in the plaintiffs case, it is incumbent upon the plaintiff to come forward with evidence establishing a material fact on the issue. Anderson, 477 U.S. at 252, 106 S.Ct. 2505. The Court is not obliged to “comb through the record to ascertain whether a genuine issue of material fact exists.” Cacevic v. City of Hazel Park, 226 F.3d 483, 492 (6th Cir.2000) (citing Guarino v. Brookfield Twp. Trustees, 980 F.2d 399, 407, 410 (6th Cir.1992)). Likewise, the moving party must reasonably identify those portions of the record upon which it relies. Simply attaching voluminous exhibits and stating that the necessary information may be found somewhere in the documents will not suffice. In this case, both parties have left the Court with a challenge by their failure to regularly support their claims by providing pinpoint citation to facts. For example, the defendant regularly cites to the whole of its exhibit 4, which has almost 80 pages. The plaintiff only cites to Dr. Wysong’s deposition in four places to support its trade secret claim and makes no mention of the e-mails attached to the complaint. The party who bears the burden of proof must present a jury question as to each element of the claim. Davis v. McCourt, 226 F.3d 506, 511 (6th Cir.2000). Failure to prove an essential element of a claim renders all other facts immaterial for summary judgment purposes. Elvis Presley Enters., Inc. v. Elvisly Yours, Inc., 936 F.2d 889, 895 (6th Cir.1991). A. Displacement of Remedies by the MUTSA The defendants argue that the Michigan Uniform Trade Secrets Act, Mich. Comp. Laws § 445.1901 et seq., displaces the claims of conspiracy, breach of fiduciary duty, unjust enrichment, and “palming off.” The plaintiff has included a count in its amended complaint for misappropriation of trade secrets. But even absent that claim, a specific provision in the MUTSA extinguishes certain torts formerly recognized at common law. Section 8 of the Act states: (1) Except as provided in subsection (2), this act displaces conflicting tort, restitutionary, and other law of this state providing civil remedies for misappropriation of a trade secret. (2) This act does not affect any of the following: (a) Contractual remedies, whether or not based upon misappropriation of a trade secret. (b) Other civil remedies that are not based upon misappropriation of a trade secret. (c) Criminal remedies, whether or not based upon misappropriation of a trade secret. Mich. Comp. Laws § 445.1908. The plaintiff contends that its other claims are independent of the misappropriation claims under the MUTSA: the claim for breach of fiduciary duty includes an allegation that the defendants improperly failed to disclose the formation of an entity intended to compete with the plaintiff while the parties were still associated together; the “palming off’ claim has elements distinct from the elements showing misappropriation; and although the unjust enrichment and conspiracy claims are partially displaced by misappropriation, the defendants’ unjust enrichment and conspiracy are separable from misappropriation to the extent that they relate to breaching fiduciary duties and “palming-off’ pet food products. The MUTSA displaces claims that are “based solely upon the misappropriation of a trade secret.” Bliss Clearing Niagara, Inc. v. Midwest Brake Bond Co., 270 F.Supp.2d 943, 946 (W.D.Mich.2003) (compiling cases interpreting displacement under various versions of state UTSAs). In other words, claims “based upon wrongful conduct independent of the misappropriation of trade secrets” are not displaced. Id. at 950. “In determining whether a claim is displaced, courts generally examine whether the claim is based solely upon the misappropriation of a trade secret. If so, the claim must be dismissed.” Id. at 946. For instance, in CMI Int'l, Inc. v. Internet Int'l Corp., 251 Mich.App. 125, 132, 649 N.W.2d 808, 812-13 (2002), the plaintiff filed a complaint against a former employee and the competitor that hired the employee alleging misappropriation under the MUTSA and other claims. The Michigan appellate court held that claims of unjust enrichment and constructive trust, breach of trust and fiduciary duty, and conspiracy were “conflicting” within the meaning of the MUTSA, finding that those “claims necessarily are based on Michigan’s USTA, because that statute displaced conflicting tort remedies for misappropriation of a trade secret.” Ibid. However, in Bliss Clearing Niagara, Inc., the plaintiff, Bliss, filed various claims against defendant Midwest Brake’s for improper use of the “TorPac 40” product name and using confidential information to manufacture and sell that product. 270 F.Supp.2d at 945. The court held that although some of the claims founded on misappropriation' — such as soliciting business with stolen information — were displaced under the MUTSA, Bliss’ claims for tortious interference and unfair competition survived because they were based on allegations that Midwest Brake used the “Tor-Pac 40” product name and some design information for making a confusingly similar product. Id. at 949-50. In this case, the “palming-off’ claim is similar to the unfair competition claim that the court in Bliss Clearing Niagara determined was not displaced by the USTA. The essence of that claim relates to an allegation that the defendants are selling confusingly similar products. The claim is not based factually or legally on the misappropriation of secret information. The “palming-off’ claim is not displaced by the MUTSA. A claim for breach of fiduciary duty and breach of duty of loyalty is really the opposite of a misappropriation claim in that it is the agent or employee that withholds information or conceals activity of his own when the relationship gives rise to a duty to disclose, whereas the essence of a misappropriation claim is the theft of the employer’s information. An employee breaches a duty of loyalty, for example, by competing against his employer without fully disclosing the his interest in the competing enterprise. See Kingsley Assocs., Inc. v. Del-Met, Inc., 918 F.2d 1277, 1283 (6th Cir.1990) (quoting Sweeney & Moore v. Chapman, 295 Mich. 360, 363, 294 N.W. 711, 712-13 (1940) (stating that “[t]he general rule is that a broker forfeit[s] his right to compensation by misconduct, breach of duty, or wilful disregard, in a material respect, of an obligation imposed upon him by the law of agency. A corollary of this rule is that the law will not permit an agent to act in a dual capacity in which his interest conflicts with his duty, without a full disclosure of the facts to his principal”) (citations and quotations omitted)); In re Hanson, 225 B.R. 366, 375 (Bkrtcy. W.D.Mich.1998) (applying Michigan law and holding that “[t]he common law imposes a duty of loyalty on employees, forbidding them from taking action contrary to the interests of their employers”); Restatement (Second) of Agency § 387 (1958) (stating “[u]nless otherwise agreed, an agent is subject to a duty to his principal to act solely for the benefit of the principal in all matters connected with his agency”). Similarly, a breach of fiduciary duty occurs when a fiduciary relationship, which “arises from the reposing of faith, confidence, and trust and the reliance of one upon the judgment and advice of another,” is “abused, or when confidence has been reposed and betrayed.” Vicencio v. Ramirez, 211 Mich.App. 501, 508, 536 N.W.2d 280, 284 (1995) (citing Ulrich v. Federal Land Bank of St. Paul, 192 Mich.App. 194, 196, 480 N.W.2d 910, 911 (1991)). The allegations supporting these claims in this case are not based on the misappropriation of Wysong Corporation’s secret information. Instead, both of these claims are based on general allegations that Freeman was secretly working with M.I. to create a competing product line while employed by the plaintiff. The plaintiff alleges: 11. That as indicated by the correspondence from Freeman to M.I. Industries president Robert Milligan attached hereto as Exhibit “A,” by at least December of 2000 Freeman was secretly working with M.I. Industries in connection with the proposed purchase of a portion of Plaintiffs business. 12. That as indicated by the correspondence from Freeman to Milligan collectively attached here to as Exhibit “B,” Freeman continued through out the first half of 2001 to secretly provide information to Milligan to assist M.I. Industries in their negotiations with Plaintiff. 13. That as indicated by the correspondence from Freeman to Milligan collectively attached hereto as Exhibit “C,” by at least March of 2001 Defendants were secretly working on a line of products directly competitive to the products manufactured and marketed by Plaintiff. Second Amended Compl. ¶¶ 11-13. These allegations claim that Freeman and Milligan were surreptitiously working to take advantage of a corporate opportunity and thereby breached a fiduciary duty and a duty of loyalty; the claims are not displaced by the MUTSA. The unjust enrichment and conspiracy claims, on the other hand, are based on the wrongful taking of Wysong’s corporate opportunity and the theft of secret information, and consequently are displaced in part. The unfair competition claims related to the sale of deceptively similar products incorporate paragraphs one through thirty-one, including the allegations of unjust enrichment and conspiracy. Under Michigan law, the elements of an unjust enrichment claim are “(1) receipt of a benefit by the defendant from the plaintiff and, (2) which benefit it is inequitable that the defendant retain.” Dumas v. Auto Club Ins. Ass’n, 437 Mich. 521, 546, 473 N.W.2d 652 (1991) (citation omitted). To state a civil conspiracy cause of action under Michigan law, “a plaintiff need only allege that the defendants were jointly engaged in tortious activity as a result of which the plaintiff was harmed.” Abel v. Eli Lilly and Co., 418 Mich. 311, 338, 343 N.W.2d 164, 176 (1984). The plaintiff has pleaded claims of unjust enrichment and conspiracy based on the alleged sale of deceptively similar products, which are wrongful acts independent of misappropriation. See Bliss Clearing Niagara, Inc., 270 F.Supp.2d at 950. Also, the unjust enrichment and conspiracy claims survive to the extent that they are based on allegations of paragraph thirteen, alleging breaches of duty for creating a product line. Second Amended Compl. ¶ 13. However, the MUTSA displaces the portion of the unjust enrichment and conspiracy claims that allege enrichment from misappropriation. B. Misappropriation Claims The defendants contend that the plaintiffs claim under the MUTSA must fail because the information alleged to be secret — the pet food formulas and concepts — were disclosed in articles published by Dr. Wysong and known in the pet food industry. They also contend that the alleged trade secrets were disclosed in information that the plaintiff gave to its distributors in advertising literature. The defendants argue that information related to the plaintiffs distributor and merchant list was personally compiled by Freeman through his work with the plaintiff and the information was publically ascertainable in public forums and meetings such as conventions and trade shows. They attack the plaintiffs claim by citing the absence of proof that the material at issue is either confidential or protected because, they claim, the plaintiff failed to take any significant steps to guard the purported secret information. Finally, the defendants allege that the plaintiff cannot demonstrate that either Freeman or M.I. actually misappropriated any information. For example, Dr. Wysong stated to other distributors that Freeman was not an “insider” of Wysong Corporation, and that the plaintiffs alleged secret information could not have been disclosed to him. The plaintiff counters those arguments by asserting that statements of Dr. Wysong in deposition demonstrate a genuine issue of material fact whether the asserted information constitutes trade secrets, was misappropriated by the defendants, and was used by the defendants in unfair competition. The plaintiff alleges that only after Freeman was told that it was developing a “forage” product did the defendants release a “prairie forage” product. As for its efforts to protect the trade secrets, the plaintiff asserts that its suppliers have signed confidentiality agreements, and as a result, the defendants could only learn of the plaintiffs suppliers through association with the plaintiff. Moreover, the plaintiff contends that the defendants received marketing information from Wysong Corporation that was unavailable to the public. The MUTSA defines a “trade secret” as information, including a formula, pattern, compilation, program, device, method, technique, or process, that is both of the following: (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. (ii) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. Mich. Comp. Laws § 445.1902. Michigan courts use the following factors to determine if information is a trade secret: (1) extent to which information is known outside of owner’s business, (2) extent to which information is known by employees and others involved in business, (3) extent of measures taken to guard secrecy of information, (4) value of information to owner and competitors, (5) amount of effort and money expended in developing information, and (6) ease or difficulty with which information could be properly acquired or duplicated by other. Compuware Corp. v. Serena Software Int’l, Inc., 77 F.Supp.2d 816, 820 (E.D.Mich.1999); see also Hayes-Albion v. Kuberski, 421 Mich. 170, 182, 364 N.W.2d 609, 614 (1984). Under Michigan law, “[t]o be a trade secret, the information must, of necessity, be a Secret.” Kubik, Inc. v. Hull, 56 Mich.App. 335, 347, 224 N.W.2d 80, 87 (1974); see Mich. Comp. Laws § 445.1902. 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 or hardship.” Kubik, Inc., 56 Mich.App. at 348, 224 N.W.2d at 87; see Mich. Comp. Laws § 445.1902(d)(i); see Hayes-Albion, 421 Mich. at 182-83, 185, 364 N.W.2d at 615 (evaluating the “time, money and effort” expended in developing information when analyzing whether to characterize the information as a trade secret). “Sufficient measures” taken to protect the secrecy of such confidential information have been found to include either an express agreement between the employer and employee restricting or prohibiting disclosure by the latter to third parties; a disclosure by employer to employee in confidence or with a tacit understanding, inferable from the attendant circumstances, that the information is confidential; or security precautions utilized by the employer to insure that only a limited number of authorized individuals have access to the information. Kubik, 56 Mich.App. at 347-348, 224 N.W.2d at 87. Misappropriation occurs upon (i) Acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means[; or] (ii) Disclosure or use of a trade secret of another without express or implied consent by a person who did 1 or more of the following: (A) Used improper means to acquire knowledge of the trade secret. (B) At the time of disclosure or use, knew or had reason to know that his or her knowledge of the trade secret was derived from or through a person who had utilized improper means to acquire it, acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use, or derived from or through a person who owed a duty to the person to maintain its secrecy or limit its use. (C) Before a material change of his or her position, knew or had reason to know that it was a trade secret and that knowledge of it had been acquired by accident or mistake. Mich. Comp. Laws § 445.1902(b). The plaintiff acknowledges that Dr. Wysong made statements that Freeman was not privy to proprietary information. See Defs.’ Reply Ex. 10, Dr. Wysong Dep. at 107; Defs.’ Mot. Summ. J. Ex. 6, Letter from PI. to distributors (Feb. 14, 2002). However, Wysong contends that the letter to suppliers was mere puffing, and other evidence creates a fact issue on whether many of Dr. Wysong’s ideas and concepts were trade secrets under Michigan law. 1. Pet Feeding Concepts With respect to the composition of the pet food itself, Dr. Wysong alleges that the defendants misappropriated his “concept” or “philosophy” for making pet food, not a specific formula or recipe. However, according to the evidence presented, Dr. Wysong’s concept of healthy pet food and his design philosophy are hardly secrets. In fact, the uncontroverted evidence is that Dr. Wysong has published extensively on the subject of his pet feeding concept and concedes that the concepts, along with his food ingredients, were publicly available. See Defs.’ Reply Ex. 10, Dr. Wysong Dep. at 69-70, 91, 110. In addition to disclosure through publication, the plaintiff discloses Dr. Wysong’s pet feeding concepts as a general marketing device for selling pet food. The back of his archetypical pet food package contains the following statement: WYSONG PHILOSOPHY Wysong Corporation’s purpose is to create products and educational aids to enhance the health of humans, animals, and the environment. Wysong Diets have emerged from this commitment and are part of an advanced Optimal Health Program scientifically developed by Wysong and refined since 1979. Please visit our website or request literature to learn more about our extensive range of products and the unique health-first philosophy from which they emerge. Defs.’ Mot. Summ. J. Ex. 4, Interrogs. at 50. The plaintiff has' marketing pamphlets containing detailed discussions of Dr. Wysong’s philosophy. Although the plaintiff claims to be an innovator in the industry, he has not kept those innovations secret. Since the essence of a misappropriation claim under the MUTSA is the theft of trade secrets, the Court finds that the plaintiff cannot maintain such a claim based on misappropriation of Dr. Wysong’s concepts and philosophy. 2. Plaintiffs Marketing Terms For .the same reason, the plaintiffs misappropriation claim based on the defendants’ use of specific terms that Dr. Wysong conceived for marketing premium pet food products fares no better. Dr. Wysong testified that the terms “variety” and “forage” were his ideas and they were communicated to Freeman in confidence and, to his disappointment, eventually used in M.I.’s product lines. Those terms, however, are not unique, but rather are descriptive of features that could be developed by others without too much imagination or-innovation. Under Michigan law, a trade secret cannot consist' of “information which is readily ascertainable, i.e., capable of being acquired by competitors or the general public without undue difficulty or hardship.” Kubik, Inc., 56 Mich.App. at 348, 224 N.W.2d at 87. The point is illustrated by Stromback v. New Line Cinema, 384 F.3d 283, 305 (6th Cir.2004). In that case, an author asserted that his poem and screenplay were trade secrets. The court found that the poems incorporated themes and ideas common throughout literature, such as “saving the world, the battle between good and' evil, sibling rivalry or familial secrets and issue.” Id at 297. The court also found that figures described as “odd, misfit, evil, or conflicted” had well-known character traits. Ibid. (quotation marks omitted). Applying Michigan law, the Sixth Circuit found that the poem and screenplay were readily ascertainable for use in creating written works and were not protectable as trade secrets. Id. at 305. Wysong Corporation’s terms — “variety” and “forage”' — are readily ascertainable for marketing healthy pet food. The term “forage” literally means “food for horses or cattle; fodder, provender.” Compact Oxford English Dictionary 618 (2d ed.1999). The term “variety,” a commonly used term, is well known for use in marketing food products. See Burke v. Dawn Donut Systems, Inc., 147 Mich.App. 42, 46, 383 N.W.2d 98, 101 (1985) (considering the trademark “Variety Doughnuts”). In fact, the plaintiff publieally uses the terms for their ordinary meaning in its current marketing. The plaintiff uses forage as the name for its horse feed product. Defs.’ Mot. Summ. J. Ex. 4, Interrogs. at 14. It also uses the “variety” term in general reference to its products: its promotional literature states “[v]ariety is the spice of health,” Pl.’s Resp. Ex. G, and “[djesigned to be freely rotated for variety and maximum nutrition.” Defs.’ Mot. Summ. J. Ex. 4, Interrogs. at 38. Moreover, the plaintiff failed to demonstrate that it invested any time or research into the developing the terms. See Hayes-Albion, 421 Mich. at 182-183, 185, 364 N.W.2d at 615 (evaluating the “time, money and effort” expended in developing information when analyzing whether to characterize the information as a trade secret). The plaintiffs MUTSA claim fails with respect to its marketing concepts. 3. Packaging Techniques Dr. Wysong alleges that his packaging product preparation methods are protectable trade secrets. The defendants challenge this claim as well, arguing that the plaintiffs’ preparation techniques are publically available or easily ascertainable. However, Dr. Wysong testified that he developed secret packaging techniques for his premium pet food products, and he invested “time, money, and effort to develop the processes and equipment, that the processes and equipment gave the plaintiff a competitive edge.” Hayes-Albion, 421 Mich. at 182-83, 364 N.W.2d at 615; see Defs.’ Reply Ex. 10, Dr. Wysong Dep. at 91-92. There is sufficient evidence that packaging technology described by Dr. Wysong is the type of information protected by trade secret law. The value of the packaging can be inferred from the fact that Wysong Corporation advertises its packaging to consumers, one advertisement states “Dry diets have Nutri-PakO oxygen- and light-barrier packaging, and fats and oils purged of oxygen by special processing.” Defs.’ Mot. Summ. J. Ex. 4, Interrogs. at 38. Moreover, the plaintiff has submitted evidence demonstrating that it took some steps to protect this technology: it required its suppliers, employee, Freeman, and M.I. to sign confidentiality statements; and the plaintiff does not permit visitors inside its plant. Id., E-mail Dr. Wysong to Mulligan (June 14, 2001) at 76. Despite Wysong Corporation’s measures to protect the packaging technology, however, the defendants are entitled to summary judgment on this part of the claim because the plaintiff has failed to offer any evidence that the technology has been used, disclosed, or acquired. See Rainbow Nails Enterprises, Inc. v. Maybelline, Inc., 93 F.Supp.2d 808, 824 (E.D.Mich.2000) (finding no misappropriation where alleged trade secret was not used or disclosed to defendants). Although the defendants touted their own packaging techniques, they did use or refer to the plaintiffs technology. The defendants’ description of its methods is as follows: [BJecause Nature’s Variety realizes how heat compromises many food components, several of these heat sensitive food ingredients are dry enrobed back on the outer surface of the finished product ... All Nature’s Variety products are naturally preserved with vitamins and herbal extracts and hermetically sealed in oxygen limiting, foil packaging Defs.’ Mot. Summ. J. Ex. 4, Interrogs. at 28. This advertising language does not mention Wysong Corporation’s techniques of “fresh batching,” barrier packaging, or “natural oxidants.” Evidence of photocopies of similar looking packages and the defendants’ contact with Wysong Corporation’s supplier, Evangers, does not demonstrate a similarity between the parties’ packaging techniques. 4. Customer Contact Information The Michigan Supreme Court has held that “there is nothing improper in an employee establishing his own business and communicating with customers for whom he had formerly done work in his previous employment.” Hayes-Albion, 421 Mich. at 183, 364 N.W.2d at 615. Thus, customer lists developed by a former employee and information' relating to a customer’s needs are not “trade secrets” under the MUTSA, McKesson Medical-Surgical Inc. v. Bio-Medics, Inc., 266 F.Supp.2d 590, 597-98 (E.D.Mich.2003), unless the employee is bound by a confidentiality agreement. Hayes-Albion, 421 Mich. at 184, 364 N.W.2d at 615. Freeman signed a confidentiality agreement covering “all information not published in Wysong literature.” Defs.’ Mot. Summ. J. Ex. 4, Confidentiality Agreement (May 7, 1999) at 18. Nonetheless, the language in Hayes-Albion suggests that for customer contact information a confidentiality agreement is a-necessary'but not a sufficient condition for establishing a trade secret. The Sixth Circuit has interpreted this aspect of the Uniform Trade Secrets Act under Kentucky Law and made the following observation: In determining whether information is readily obtainable by proper means, courts generally distinguish between, on one hand, lists of customers “discoverable only through extraordinary efforts and ... through many years’ expenditure of time and money,” such as purchasers of HIV medications who value confidentiality, see In re Am. Preferred Prescriptions v. Health Mgmt., Inc., 186 B.R. 350, 356 (Bankr.E.D.N.Y.1995), or the purchasers of unusual goods or services not generally known to an industry at large, see Morlife v. Perry, 56 Cal.App.4th 1514, 66 Cal.Rptr.2d 731, 735 (1997), and, on the other hand, lists of customers whose identities as purchasers of a given type of product may be obtained through such legitimate channels as telephone books, the internet, or by calling local businesses, see, e.g., UBS Painewebber, Inc. v. Aiken, 197 F.Supp.2d 436, 447 (W.D.N.C.2002) (customer list not trade secret under statute almost identical to Kentucky Act despite attempts at secrecy, because information was readily available through independent development); Novacare Orthotics & Prosthetics v. Speelman, 137 N.C.App. 471, 528 S.E.2d 918, 922 (2000) (customer list not trade secret because information used to contact customers was “easily accessible to defendant through a local phone book”). ATC Distribution Group, Inc. v. Whatever It Takes Transmissions & Parts, Inc., 402 F.3d 700, 714 (6th Cir.2005). The court affirmed summary judgment for the defendants in that case because the plaintiff failed to show that the list of customers “was obtained through great effort or expense, or that the names of the list were not discoverable from a telephone book or similar legitimate source.” Ibid. The court noted that even the identity of individual contacts “can be ascertained simply by calling each shop and asking.” Id. at 714-15. The unrebutted evidence in this case establishes that the names of the distributors were available “in public forums and meetings such as conventions and trade shows.” Defs.’ Mot. Summ. J. at 12-13. In support of this assertion, the defendants provided a thirty-eight-page list of customers that distribute their products consisting of pet supply stores, including names, phone numbers, addresses, and websites, all of which was readily obtainable through publicly available means. The plaintiff presents no evidence that the identities of its customers were obtained through great effort or expense or were obscure or confidential. The defendants are entitled to summary judgment on this aspect of the MUTSA claim. 5. Supplier Contact Information Unlike the customer contact information, the plaintiffs supplier contact data meets the definition of a protectable trade secret. The defendants argue that the plaintiffs supplier information was compiled by Freeman through his work and that the information was ascertainable in public forums and meetings such as conventions and trade shows. However, the evidence creates a fact issue in this point. Under Michigan law, supplier ■ contact information is a protectable trade secret with or without a confidentiality agreement. The Hayes-Albion court held: The information regarding sources of supply is perhaps most difficult of all to characterize. Plaintiff experimented with materials and solutions to determine how to make the best product at the cheapest cost. To the extent that defendants purchased from plaintiffs supplies materials to manufacture the same products made by plaintiff through use of the same processes employed by plaintiff, defendants are seeking to reap where they have not sown. Hayes-Albion, 421 Mich. at 184-85, 364 N.W.2d at 616. The court held that the supplier information was protectable when the defendant employee was exposed to the suppliers during the course of his employment. Ibid. Here, the plaintiff submits evidence that it had a confidentiality agreement with the defendants. Moreover, the plaintiff can demonstrate that the information was not readily ascertainable. Dr. Wysong testified: Q.... If I wanted to go to Evanger’s [a supplier] and say I want to make pet food and I wanted to do that? A. If you knew to fair [sic] that out. Q. Well, you would acknowledge the reality that these suppliers aren’t sitting under bushes not showing their names to potential customers are they? A. Some of them are quite obscure and none of them should be revealing that they’re doing business with us. Q. But conversely they can reveal certainly that they are willing to do cold packing for anyone that might ask them to do that? A. I can’t speak for them. Defs.’ Reply Ex. 10, Dr. Wysong Dep. at 118-19. The defendants’ assertion that supplier identities can be found by attending trade shows or through public information sources demonstrates an issue of fact concerning the availability of the plaintiffs supplier information. Moreover, other evidence submitted by the plaintiffs demonstrate that, even if the name of the supplier is available through public means such as a phone book, supplier information may still be protectable. Information concerning the capabilities and know-how of the suppliers is valuable and something that Wysong Corporation and the supplh er agreed to keep secret by signing a confidentiality agreement. Dr. Wysong testified that his company expended effort developing technology with one of its packaging suppliers. Ibid, at 91-92, 117. The plaintiff also submits information that it took steps to protect the information by making Freeman, other employees, M.I., and the suppliers sign confidentiality agreements. Defs.’ Reply Ex. 10, Dr. Wysong Dep. at 118; Defs.’ Mot. Summ. J. Ex. 4, E-mail to Scott Freeman (Sep. 13, 2000) at 68. Dr. Wysong specifically states that his confidentiality agreement with Freeman included supplier contacts. Defs.’ Reply Ex. 10, Dr. Wysong Dep. at 120. Dr. Wysong made efforts to ensure the agreements were honored. He wrote to Freeman that, “[i]n any case this is our problem and between M & I and us. I do not want you distracted by such matters with so much you could be doing. Also, our suppliers, what they send us, etc., etc. is confidential,” and “[w]e consider our suppliers proprietary and confidential.” Defs.’ Mot. Summ. J. Ex. 4, E-mails to Scott Freeman (June 11, 2001 and July 6, 2001) at 73, 77. Because there is an issue of fact on the critical elements of this aspect of the plaintiffs MUTSA claim, summary judgment may not be granted. 6. Financial Information Although the defendants offer evidence showing that confidential financial information was never communicated to them, the plaintiff offered evidence of an e-mail in which Freeman summarizes projections for Wysong Corporation’s sales in 2000. Freeman specifically qualifies his sales figures with comments that these are “my personal projections” and that he “would like us to seriously discuss what we could do if the above figures were to be an accurate forecast.” Second Amended Compl. Ex. A, Facsimile from Freeman to Mulligan (Dec. 3, 2000). However, the memorandum provides a summary of all of Wysong Corporation’s income and a projection as to how the income could increase. The summary names all of Wysong Corporation’s market areas and resulting and projected sales in each area. A reasonable finder of fact could conclude that this information, particularly the resulting 2000 figures, was confidential to Wysong Corporation and a trade secret. The plaintiff has thus presented evidence demonstrating a factual issue that the defendants had access to or misappropriated financial information. Likewise, the plaintiff offered evidence that it took measures to protect financial information similar to the measures taken to protect supplier information, and that Dr. Wysong made efforts to ensure the agreements were honored. The defendants are not entitled to summary judgment on this aspect of the MUTSA claim. C. Unjust Enrichment Aside from the argument that the unjust enrichment claim is displaced by the MUTSA, the defendants also argue that the plaintiff conferred no benefit on them. The plaintiff argues that there is a genuine issue of material fact that the defendants were unjustly enriched by Freeman’s breach of duties and the defendants “palming off’ products. In Hayes-Albion, the court held that a defendant company “who knowingly joins a fiduciary in an enterprise where the personal interest of the latter is or may be antagonistic to his trust becomes jointly and severally liable with him for the profits of the enterprise.” Hayes-Albion, 421 Mich. at 187, 364 N.W.2d at 617 (citations and quotations omitted). In this case, the plaintiff offers evidence that Freeman and M.I. were preparing a venture in competition with the plaintiff while Freeman still worked for and received compensation from the plaintiff. An e-mail between Freeman and Mulligan provides evidence that Freeman was preparing a new line of premium pet food with M.I. while still associated with Wysong Corporation: Marge, at Evangers, is sending no later than tomorrow quotes on 14 oz and 5.5 oz cans.... I told her we are a new upstart company. I gave her Mi’s fax, telephone, and company name of Natural Pet Products. I also gave her Theron, Joe, and Greg (that’s me, Gregory Scott Freeman) names as contacts.... She was excited to talk to me and the possibility of doing business with us.... Also, I want this to be my last show for Wysong coming up this weekend. Second Amended Compl. Ex A., E-mail Freeman to Mulligan (Mar. 26, 2001). The plaintiff has demonstrated a genuine issue of material fact whether M.I. was unjustly enriched by Freeman’s services and is liable with Freeman for the profits of their enterprise. The unjust enrichment claim therefore survives summary judgment. D. Civil Conspiracy The defendants also argue that the plaintiff has not proved that they ever agreed to commit an illegal act. A civil conspiracy is an agreement between two or more persons to accomplish some unlawful purpose through concerted activity. Ahlers v. Schebil, 188 F.3d 365, 374 (6th Cir.1999). Under Michigan law, “[i]t is sufficient if the circumstances, acts and conduct of the parties establish an agreement in fact. Furthermore, conspiracy may be established by circumstantial evidence and may be based on inference.” Temborius v. Slatkin, 157 Mich.App. 587, 599, 403 N.W.2d 821, 827 (1986). In this case, the acts and conduct of the defendants outlined earlier are sufficient to establish an inference of an agreement to accomplish some unlawful purpose. There is evidence the defendants conspired to create a venture that allegedly infringed on the plaintiffs trade dress. Freeman and M.I. may have prepared a joint venture to compete against the plaintiff in possible breach of Freeman’s duties, leading to their unjust enrichment. Summary judgment on this claim is not appropriate. E. Breach of Fiduciary Duty and Duty of Loyalty The defendants argue that their relationship with the plaintiff did not give rise to a duty of loyalty or as a fiduciary. Under Michigan law, fiduciary duties flow “out of the relation subsisting between two persons of such a character that each must repose trust and confidence in the other and must exercise a corresponding degree of fairness and good faith.” Portage Aluminum Co. v. Kentwood Nat’l Bank, 106 Mich.App. 290, 294, 307 N.W.2d 761 (1981). Examples of fiduciary relationships are: “trustees to beneficiaries, guardians to wards, attorneys to clients, and doctors to patients.” Ibid. Michigan courts have held that “whether there exists a confidential relationship apart from a well-defined fiduciary category is a question of fact.” Fassihi v. Sommers, Schwartz, Silver, Etc., 107 Mich.App. 509, 515, 309 N.W.2d 645 (1981) (addressing “what duties, if any, an attorney representing a closely held corporation has to a 50% owner of the entity, individually”). Unless circumstances indicate otherwise, the employer/employee relationship alone generally does not give rise to fiduciary duties. See, e.g., Bradley v. Gleason Works, 175 Mich.App. 459, 463, 438 N.W.2d 330, 332 (1989). However, in the Sixth Circuit, there is no rule that a specific relationship may never be the basis of fiduciary obligations; rather, courts must look to the actual relationship between the parties. See ATC Distribution, 402 F.3d at 715. In this case, the plaintiff argues that it allowed M.I. to distribute its products, Freeman to sell its products and find a purchaser of the business, and allowed them access to confidential information. The defendants argue that there is nothing inherently unique about the relationship between the potential purchase of a business such as M.I. and the plaintiff, and the facts do not demonstrate an agreement under which Wysong Corporation reposed any trust or confidence in the defendants. The argument has merit with respect to M.I. There is no evidence of a relationship that the law recognizes as giving rise to a duty of loyalty or a fiduciary obligation. The plaintiff