New England Surfaces v. E.I. Du Pont De Nemours & Co. (517 F. Supp. 2d 466, 2007)

ORDER ON MOTIONS FOR SUMMARY JUDGMENT [REDACTED PUBLIC VERSION]

GEORGE Z. SINGAL, Chief Judge.

This case arises out of the termination of a business relationship between Defendant E.I. Du Pont de Nemours and Company (“DuPont”) and Plaintiff New England Surfaces (“NES”). NES was the New England distributor of DuPont manufactured products for over thirty-five years. DuPont terminated the business relationship in April of 2006, and Defendant Park-site, Inc. (“Parksite”), a sales and distribution company based in Illinois, became the Sales Affiliate for DuPont in the New England area.

On August 29, 2006, NES filed a second amended complaint asserting nineteen claims against DuPont and nine claims against Parksite. (Docket # 65.) Specifically, the second amended complaint asserts causes of action against DuPont for violation of the Connecticut Franchise Act (Count I), Connecticut Unfair Trade Practices Act (Count II), Massachusetts Unfair Trade Practices Act (Count III), New Hampshire Consumer Protection Act (Count IV), Vermont Unfair Trade Practices Act (Count V), fraud and misrepresentation (Count VI), negligent misrepresentation (Count VII), breach of fiduciary duty (Count VIII), breach of fiduciary duty (Count IX), aiding and abetting tortious conduct (Count X), promissory estoppel (Count XI), breach of the covenant of good faith and fair dealing (Count XII), tortious interference with contractual rights and prospective economic interests (Count XIII), breach of contract (Count XIV), unreasonable termination of distribution agreements (Count XV), unconscionability (Count XVI), misappropriation of confidential information (Count XVII), violation of Maine Antitrust Statute (Count XVIII) and violation of Maine Unfair Sales Act (Count XIX).

The second amended complaint asserts causes of action against Parksite for violation of the Connecticut Unfair Trade Practices Act (Count II), Massachusetts Unfair Trade Practices Act (Count III), New Hampshire Consumer Protection Act (Count IV), Vermont Unfair Trade Practices Act (Count V), breach of fiduciary duty (Count IX), aiding and abetting tortious conduct (Count X), tortious interference with contractual rights and prospective economic interests (Count XIII), misappropriation of confidential information (Count XVII) and violation of Maine Antitrust Statute (Count XVIII). On October 20, 2006, the Court issued an Order on Motion to Dismiss, dismissing Counts II, III, IV, V and XVI of the second amended complaint. (Docket # 71.)

Before the Court are Defendant DuPont’s Motion for Summary Judgment with Incorporated Memorandum of Law (Docket # 109) and Defendant Parksite’s Redacted Motion for Summary Judgment and Incorporated Memorandum of Law (Docket # 112). Through these Motions, Defendants DuPont and Parksite seek summary judgment on all remaining counts alleged by NES. After reviewing the parties’ submissions, the Court GRANTS IN PART and DENIES IN PART the Motions.

I. BACKGROUND

A. DuPont

DuPont manufactures the solid surfaces products Corian®, Zodiaq® and SimplicityTM (“surface products”), which are used in the fabrication of countertops and a variety of other items used in kitchens, baths and other installations. (Defendant E.I DuPont de Nemours and Company’s Statement of Undisputed Material Facts (“DuPont’s SMF”) (Docket #110) ¶1.) For more than thirty years, DuPont has contracted with distributors, and more recently, a Regional Sales Office in New England, to market and distribute its products within the United States. (Id.) Distributors, in turn, sell the products to fabricators and retailers. (Id.) Fabricators shape and make the DuPont products into countertops and other products. (Id.) Fabricators then sell finished products to retailers, builders, business owners and individual customers. (Id.) Retailers purchase products and resell them to consumers and others. (Id.)

DuPont requires that all fabricators who create products using DuPont products enter into a standard form DuPont Certified Fabricator/Installer Agreement with DuPont. (DuPont’s SMF ¶ 2.) The Fabricator Agreements require that the fabricators register each residential Corian® installation with DuPont by completing the warranty registration cards and returning them to the distributor for processing. (DuPont’s SMF ¶ 3; Plaintiffs SMF ¶3.) NES choose, trained and qualified the New England fabricators, who were NES customers that construct and install DuPont surface products. (Plaintiff New England Surfaces d/b/a Dion Distributors, Inc.’s Response to Defendant DuPont’s Statement of Material Facts and Statements of Additional Facts (“Plaintiffs SMF”) (Docket # 176) ¶ 2.)

DuPont requires that retailers of DuPont products enter into a standard form DuPont Authorized Retailer Agreement. (DuPont’s SMF ¶ 4.) In the case of Corian®, the agreement provides that each retailer is eligible to be listed on the DuPont Corian® website retailer locator and other leading remodeling websites authorized by DuPont. (Id.) The DuPont retailer agreements require that retailers work with Certified Fabricators/Installers to enter warranty card information into the DuPont website www.warrantycards.com. (Id. ¶ 5.)

Since at least the early 1980s, DuPont has maintained several databases, including the above website, which contain information about Certified Fabricators/Installers and Authorized Retailers in each Geographical Marketing Area (“GMA”) in which DuPont’s products are sold. (Id. ¶ 6.) The DuPont databases contain the names, addresses and other information about retailers and fabricators. (Id. ¶ 7.) The information in the databases has been submitted to DuPont by distributors, fabricators, retailers, consumers, from leads developed by DuPont and others at trade shows, from consumer visits to public DuPont websites and from sales information reported by fabricators and distributors. (Id.) Distributors have access to certain DuPont databases, including databases known as corianenterprise.com and sales-force.com. (DuPont’s SMF ¶ 8.) The databases to which distributors have access, however, do not contain information regarding other distributor’s customer lists, and internal DuPont websites offer limited access to the public and distributors. (Plaintiffs SMF ¶¶ 6, 8). Authorized retailers in the New England GMA with which NES did business were known to the public through these websites. (Id. ¶ 10; DuPont’s SMF ¶ 10.) Nonetheless, some of the data collected by DuPont and maintained in the DuPont databases was available to the public on its website. (DuPont’s SMF ¶ 9.) The information available to the public did not include sales data such as sales volume or rankings of distributors. (Plaintiffs SMF ¶ 9.)

B. New England Surfaces

New England Surfaces, based in Lewiston, Maine, was an authorized distributor of DuPont solid surface products for over thirty-five years. (Plaintiffs SMF ¶ 118.) At the time DuPont terminated its distributorship, NES was the New England distributor of the three DuPont surface products. (Id. at ¶ 119.)

In April of 2006, DuPont surface products accounted for approximately 75% of NES’ business, and DuPont was aware of this. (Id. ¶ 121.) Corian® was the dominant trade name supporting NES’ business and was featured on NES’ trucks, business cards, apparel and marketing materials. (Id. ¶ 122.) In addition to DuPont surface products, NES distributed cabinets, decorative hardware and flooring products, which comprised the remainder of NES’ business. (Id. ¶ 124.) DuPont discouraged NES from carrying competing product lines. (Id. ¶ 176.) At DuPont’s urging, NES reduced its offerings of noncompeting products from fifty product lines in 2000 to fourteen product offerings in 2004 so that its employees could focus on DuPont products. (Plaintiffs SMF ¶ 176.)

At the time of the termination, Robert Dion, Jr. (“Dion”) was the CEP and sole shareholder of NES. (Id. ¶ 125.) In 1998, Dion purchased the company from his father, Robert Dion, Sr. (Id. ¶ 126.) In 2000, NES merged with Winde-McCormick, a Rhode Island based authorized DuPont surface products distributor. (Id. ¶ 127.) DuPont supported NES’ merger with Winde-McCormick, which resulted in NES’ expansion into Rhode Island, Massachusetts and part of Connecticut. (Id. ¶ 128.)

On or about May 24, 2004, Dion and Ronald Winde traveled to Wilmington, Delaware to meet with the leaders of the DuPont surfaces business. (DuPont’s SMF ¶ 61.) During that meeting, Dion and Winde advised DuPont that Dion intended to buy out the fifty percent ownership interest of Ronald Winde and members of his family in NES. (Id. ¶ 62.) DuPont was concerned that the increased debt load would mean that NES would be unable to grow the business and reinvest in it. (Id. ¶ 67.) In 2004, NES procured $4.5 million in financing from Citizens Bank, which was used to purchase all of Ronald Winde’s shares, and thereby Dion became NES’ sole shareholder. (Plaintiffs SMF ¶ 132, 133; DuPont’s SMF ¶ 68.) Dion indicated, however, that the debt from the Winde buy-out did not adversely affect NES’ ability to grow the business and reinvest in it. (Plaintiffs SMF ¶ 67.)

C. The Agreements between DuPont and NES

Over the years, NES was asked to sign a number of different agreements with DuPont. (Plaintiffs SMF ¶ 166.) At any given time, different agreements were in place. (Id.) There were, for example, separate written agreements for Corian®, Zodiaq® and Simplicity™. (id. ¶ 167.) DuPont repeatedly and over the course of many years emphasized to its distributors, including NES, the need for a relationship based on mutual aid, loyalty and trust. (Id. ¶ 168.)

DuPont signed a written distributor agreement with NES for the distribution of Corian® products on August 11, 2000 (“2000 Agreement”), which was in effect until NES was terminated in 2006. (DuPont’s SMF ¶¶ 18, 19.) The preamble and paragraphs 1 through 9 of the 2000 Agreement are identical in all respects to the preamble and paragraphs 1 through 9 of the 1997 Agreement between DuPont and NES. (Id. ¶20.) Dion was told that the contract, formed 26 years into the relationship, was “some boilerplate that Wilmington wants” by a person from DuPont. (Plaintiffs SMF ¶ 169.)

The 2000 Agreement and each of the agreements between DuPont and NES’ predecessors contained express provisions stating that either party could terminate the agreement upon 30 days’ notice. (DuPont’s SMF ¶ 21.) The 2000 Agreement stated that “either party may terminate this agreement with or without cause, upon at least thirty (30) days prior written notice.” (Id. ¶ 22.) In 2000, DuPont and NES also entered into written distributor agreements for the distribution of two other surface products, Zodiaq® and SimplicityTM. (id. ¶ 23.) The Zodiaq® contract contained a termination provision identical to that contained in the 2000 Corian® Agreement, and the SimplicityTM contract explicitly stated: “The parties agree all of the terms and conditions, including rights of termination, of the Corian® Distributor Agreement, shall govern this Agreement. ...” (Id. ¶24; Docket # 121-4 ¶ 1.)

The 1991, 1997 and 2000 Agreements contained provisions requiring the submission of NES’ business plans to DuPont. (Id. ¶ 30.) NES, along with its predecessors, and DuPont agreed in the 1991, 1997 and 2000 Agreements that: “DuPont will judge the performance of [NES] based upon, without limitation, compliance with the Business Plan, achievement of target segment market share in GMA and overall growth in Corian purchases.” (Id. ¶ 31.) The 2000 Agreement, however, provided that “before the commencement of every succeeding year hereunder DuPont and [NES] will agree in writing to a new one (1) and three (3) year Business Plan.” (DuPont’s SMF ¶ 173.) Until 2004, NES prepared its own business plans for DuPont’s review and approval. (Plaintiffs SMF ¶ 172.) Starting in 2004, DuPont drafted and prepared business plans and presented them to NES. (Id. ¶ 173.) As part of the process of approving NES’ business plans for the year 2005, DuPont indicated to NES what its end number needed to be. (Plaintiffs SMF ¶ 174.) DuPont would not move the goals that it set for distributors, and NES perceived that it had to sign onto pricing agreements. (Id. ¶ 171.) DuPont reviewed NES’ financial statements at least annually and required that DuPont approve all significant changes to NES’ ownership. (Id. ¶ 175.)

The 1997 and 2000 Agreements contained a clause that stated: “All understandings, representations, warranties and agreements, if any, heretofore existing between DUPONT and [NEW ENGLAND SURFACES] regarding the subject matter hereof are merged into this Agreement, including the Schedule attached hereto, which full [sic] and completely express the entire understanding of the parties with respect to the [sic] their relationship.” (DuPont’s SMF ¶ 32.)

The 1997 and 2000 Agreements also stated that the parties entered the Agreement “freely, intelligently, and voluntarily” with “nether [sic] party relying upon any statement or representation not contained in this Agreement or the Schedules attached hereto.” (Id. ¶ 33.) The 1997 and 2000 Agreements additionally provided that they “shall not be amended or modified orally, by usage of trade, or course of dealing and no amendment or modification shall be of any force or effect unless contained in a writing signed by both parties. ...” (Id. ¶34.)

In addition to the above provisions, the 1997 and 2000 Agreements explicitly limited DuPont’s liability and damages in the event that it terminated the distributor relationship:

“[e]ach party has considered the possibility of expenditures necessary in preparing for the performance of this Agreement and each agrees that neither of them shall be liable to the other for any such expenditures or for damages or losses incident thereto. Moreover, DuPont shall have no liability of any kind or nature whatsoever (including without limitation, indirect, consequential, special, incidental or punitive damages) to [NES] for terminating this Agreement in accordance with the terms thereof.”

(Id. ¶ 35.) In addition, the 1997 and 2000 Agreements expressly limited DuPont’s liability for any communications relating to the termination: “DuPont shall have no liability of any kind whatsoever ... to [NES] for DuPont’s communications ... with past, present or prospective purchasers or users of Products when such communications pertain to termination of [NES].” (Id. ¶ 36.)

D. NES Acquires the Kilstrom Distributorship

In 2002, NES acquired Kilstrom Distribution, Inc. (“Kilstrom”) a distributor of DuPont surfaces products with a GMA comprising most of Connecticut and most of Massachusetts. (DuPont’s SMF ¶ 40.) Before the acquisition, John Charamella, the Regional Corian® Sales Manager for DuPont, approached NES and encouraged it to buy Kilstrom. (Plaintiffs SMF ¶ 129.) Bill Flemins, the National Distribution Manager for DuPont, Mike Salzberg, the North American DuPont Business Manager, and Mike McDonnell, the Eastern Regional Sales Manager for DuPont, told NES that DuPont would support NES’ acquisition of the Kilstrom Territory. (Id.) Based on these assurances, NES acquired Kilstrom, its Connecticut territory and customers and leased an office and warehouse facility in Wallingford, Connecticut for $6.35 million. (Id. ¶ 130.) Kilstrom’s sales goals were added to NES’, which NES had trouble meeting. (Id.) NES was made more vulnerable financially by incurring the debt. (Id.)

By letter agreement dated March 1, 2002, between NES and DuPont, the 2000 Agreement was amended solely to expand NES’ GMA to include the former Kilstrom GMA. (DuPont’s SMF ¶ 41.) All of the other provisions in the 2000 Agreement remained unmodified. (Id. ¶ 42.)

None of the agreements between NES and DuPont required that NES maintain a place of business in Connecticut. (Id. ¶ 43.) Connecticut is referenced in the amended Agreement because portions of Connecticut and portions of Massachusetts were designated as part of the GMA to be serviced by NES. (Id. ¶44.) There was little, if any, communication between Dion and DuPont regarding the plans in Connecticut moving forward from the acquisition. (Id. ¶ 44, 45.) Dion testified at his deposition that the lack of communication was because NES was operating “at the status quo,” and how NES would conduct distribution in Connecticut was not an issue of contention. (Plaintiffs SMF ¶45, 46.) NES believed that it was “maintaining the status quo” by continuing to maintain a place of business in Connecticut, as Kilstrom had. (Id. ¶¶ 43, 45, 46.)

NES was represented by counsel during the acquisition of Kilstrom and was aware of the financial obligations imposed by the deal. (DuPont’s SMF ¶ 48.) Dion, as corporate designee of NES, was asked what representations were made to him by DuPont in connection with the acquisition of Kilstrom. (Id. ¶ 49.) Dion testified that two DuPont employees, Bill Fleming and John Charamella, told NES that DuPont would provide “local advertising” support to NES after the acquisition. (Id. ¶ 50.) Dion clarified that he thought “local advertising” support meant that DuPont would provide funding for local advertising to NES after the acquisition. (Id. ¶ 51.) Dion further testified regarding what local advertising meant: “It just means that there will be funds available in your marketplace over and above what normally would be deployed to that market area. More bucks is what it amounts to.” (Id. ¶ 52.) Dion also testified that there was no discussion regarding how long the funds would be made available or precisely how much money DuPont would extend to NES in local advertising funds. (Id. ¶¶ 52, 53.)

E. Critical Review Status

In the fall of 2003, NES was placed on “Critical Review” by DuPont. (DuPont’s SMF ¶ 56.) On November 20, 2003, DuPont met with representatives of NES to discuss NES’ “performance as an Authorized Distributor for DuPont Corian and the steps ... that New England Surfaces, Inc., will take to make progress towards achieving performance goals, and to grow purchases and increase resale of DuPont Corian products.” (Id.) Dion was told that the Critical Review process was a formality, and that the Critical Review letter was “a form letter” that a number of other DuPont distributors had also received. (Plaintiffs SMF ¶ 56.) Nonetheless, at his deposition, Dion indicated that he knew of a prior DuPont distributor, KBQ in Massachusetts, that was terminated for under-performance. (DuPont’s SMF ¶¶ 37, 38.) Dion was approached by DuPont prior to KBQ’s termination to take over the KBQ territory. (Id.)

The December 5, 2003 letter from DuPont to NES required NES to submit a “Corrective Action Plan” within thirty days, “[i]dentify[ing] specific action items ... to correct the performance deficit” and “provid[ing] monthly updated purchase forecasts.” (Id. ¶ 57.) The December 2003 letter from DuPont ended with the following statement:

The steps described above including the acceptance and implementation of a Corrective Action Plan, do not alter or supersede any portion of the existing Corian Distribution Agreement, including: (1) DuPont’s right to terminate the agreement with or without cause; (2) Distributor’s right to terminate the agreement with or without cause; (3) DuPont’s right to appoint additional representatives within all or part of the Territory.

(Id. ¶ 58.) On December 23, 2003, NES submitted a Corrective Action Plan to DuPont. (Id. ¶ 59.) On April 26, 2004, DuPont sent another Critical Review letter to NES, indicating that NES “remains on Critical Review,” noting that NES was still not meeting its objectives and that DuPont was looking to NES “to show a sustainable turnaround in performance.” (Id. ¶ 60.)

In April 2005, DuPont summoned the principals of NES to a meeting with the leaders of the DuPont surfaces business. (DuPont’s SMF ¶ 69.) Dion and Charles Trapani, the recently appointed President of NES, attended the April 28, 2005 meeting with DuPont, where they were told that NES remained on Critical Review. (Id. ¶¶ 70, 71.) DuPont questioned how NES was going to meet its sales goals and stated that NES was not currently meeting those goals. (Id.) NES indicated that it would do everything it could to meet the goals. (Id.; Plaintiffs SMF ¶ 71.)

On May, 4, 2005, DuPont sent another letter to NES, which further emphasized that NES was “falling considerably short of the business plan and objectives” and required that NES develop and submit to DuPont an “urgent plan of action to immediately reverse your performance to meet expectations.” (DuPont’s SMF ¶ 72.) The letter stated that DuPont “will accordingly not hesitate to take any action permitted under Distributor agreements should performance not significantly improve.” (Id. ¶ 73.) On May 11, 2005, NES responded to DuPont’s May 4, 2005, letter, stating that NES “confirmfed] our understanding of the severity of the situation” and NES “had a 50% confidence level” that it could achieve the originally stated goals for 2005, and a “90% confidence level” that it could achieve purchases that were 9.7% below goal and sales that were 4.7% below goal. (Id. ¶ 75.)

On September 29, 2005, DuPont sent another Critical Review letter to NES, stating that “[o]verall performance of [NES] continues to fall below goals and expectations” and that NES’ purchases are 23% below goal year to date, and that NES’ sales were 12% below goal year to date. (Id. ¶ 76.) It was around this time that DuPont began contemplating terminating NES. (Plaintiffs SMF ¶ 76.) On October 27, 2005, NES responded to the September 29, 2005 Critical Review letter stating: “We acknowledge and understand that on a year-to-date basis NES is still behind its improved growth goal as you indicate in your letter.... NES is still not pleased with its progress and remains committed to doing its part in turning things around.” (DuPont’s SMF ¶ 77.)

On January 27, 2006, DuPont sent another Critical Review letter to NES, stating: “[t]he results are disappointing and well below expectations and goals.... DuPont is looking for [NES] to show a sustainable turnaround in performance .... [t]he above, including the implementation of corrective action plans, do not alter or supersede any portion of the existing Corian Distributor Agreement.” (IcL ¶ 78.) The January 27, 2006 letter also summarized in numeric terms NES’ failures to meet DuPont’s goals over the past year, as well as NES’ failures to meet its own forecasts, which it had submitted to DuPont on May 11, 2005. (Id. ¶ 79.) [REDACTED] On February 21, 2006, NES responded to DuPont’s January 27, 2006 Critical Review letter, stating that NES was “also not satisfied with the progress of Corian sales to date.... ” (DuPont’s SMF ¶ 80.)

G. The Customer Lists

On or about February 13, 2006, DuPont invited all distributors of Corian® products to participate in a marketing promotion called “Get a Cool Deal on Corian.” (DuPont’s SMF ¶ 99.) Each distributor that wished to participate in the program was required to submit certain data about the retailers the distributors intended to target in the promotion, including: (i) the DuPont Retailer number associated with the retailer; (ii) the name, address, telephone number and contact name for the retailer, and (iii) the amount of sales that the distributor had made to the retailer in 2005. (Id. ¶ 100.) The sales data requested by DuPont was only for the year 2005 and was for the “Magna” color series. (Id. ¶ 101.)

In March 2006, DuPont’s John Charamella requested that NES’ Lew Paine provide a more accurate customer list with sales figures for the “Get a Cool Deal on Corian” promotion, stating that NES’ participation in the promotion would be approved once the customer list information was received. (Plaintiffs SMF ¶ 178.) Prior to the “Cool Deal” promotion, DuPont had never requested that NES provide DuPont with its complete customer list or individual customers’ sales data. (Id. ¶ 179.) Although DuPont’s promotions were characterized as voluntary, NES felt compelled to participate. (Id. ¶ 102.) DuPont could not have come up with the customer list on its own, as it included many non-authorized dealers of Corian® and sales data to which DuPont was not privy. (Id. ¶ 180.) The sales data from NES requested for the “Cool Deal” promotion contained information that DuPont did not otherwise have in its databases. (Id. ¶ 181.)

On March 20, 2006, Lew Pain forwarded the requested customer list and data to John Charamella. (Id. ¶ 182.) DuPont, by virtue of the databases described above, already had most of the data requested in the “Cool Deal” promotion for each retailer identified by NES, with the exception of the sales data. (DuPont’s SMF ¶ 104.)

DuPont claims that it needed the data about sales because the stated goal of the promotion was to achieve a 20% increase in each retailer’s Corian® sales. (Id. ¶ 105.) In an effort to track results against the goal, DuPont requested the sales data from each participating retailer. (Id.) [REDACTED]

There are no markings on the customer list stating that it is a confidential document or to be treated as confidential. (Defendant Parksite, Inc.’s Statement of Material Facts in Support of its Motion for Summary Judgment (“Parksite’s SMF”) (Docket # 119) ¶ 41.) NES never sought a commitment from DuPont of restrictions on the use of the information in the list. (Id. ¶ 42.) NES did not have any of its employees sign employment agreements, confidentiality agreements or non-compete agreements. (Id. ¶ 49.)

F. DuPont Delivers Notices of Termination

On April 4, 2006, DuPont hand delivered notices of termination of NES’ Distributor Agreements for Corian®, Zodiaq® and SimplicityTM products. (DuPont’s SMF ¶ 81.) The notices provided that for the first thirty days NES would continue being the distributor of DuPont products in its GMA, but that upon expiration of the initial thirty days DuPont would commence sales within NES’ territory, and that NES’ termination would be effective upon expiration of the second thirty day period, on June 4, 2006. (Plaintiffs SMF ¶ 191.)

DuPont decided not to inform NES of its termination prior to delivering the notice of termination, and was concerned that NES’ sales of DuPont surface products would be impacted, particularly if NES began distributing competing products. (Plaintiffs SMF ¶ 186.) By e-mail stream dated April 12-13, 2005, between DuPont’s Tom Kearns, Mick MacDonnell, John Charamella, John Groves, Rand Mendez, Michael Gilmore and Patrick Owens, DuPont personnel wrote: “[NES] may have reached the point of no return and our market presence in New England is suffering.” (Plaintiffs SMF ¶ 183; DuPont’s SMF ¶ 183.) In addition, they wrote: “there appears to be minimal risk in terminating [NES] and ‘proposing’ Parksite assume the GMA” and that “[r]ealizing a Parksite acquisition may take up to a year to consummate.... Maybe we could negotiate the deal in principle, agree on the evaluation, etc. Then ... while doing diligence and finishing off the acquisition.... We could terminate NES. Would need to check legal implications.” (Plaintiffs SMF ¶ 184.)

NES requested an additional 120 days to effect a transition to another surface product, but DuPont did not grant its request. (Id. ¶ 197.) NES attempted to acquire alternative surface products and began distributing Meganite, but NES needed additional time to transition its business. (Id. ¶ 198.) DuPont and Park-site discouraged fabricators interested in supporting NES’ Meganite business, stating in an e-mail: “We need to be clear to our customers that any investment they provide the Meganite start-up mil be viewed as supporting Corian® replacement by a competitive product.” (Id. ¶ 199.)

In December 2006, NES ceased doing business. (Id. ¶ 200.) NES was forced to vacate its facilities, thereby incurring liabilities to its landlords. (Id. ¶ 201.) NES was forced to self-liquidate, in an effort to pay off its creditors. (Plaintiffs SMF ¶ 202.) Among other debts and liabilities, NES continues to owe its lenders $3.6 million plus interest, plus legal fees. (Id. ¶ 203.) In the six months since NES was terminated, Parksite and DuPont have generated sales of $15,440,789 million in surface products in the New England GMA. (Id. ¶ 204.)

G. Parksite

After the termination, DuPont announced “a new channel efficiency and alignment model for the marketing and sales promotion of its products which ... uses a demand creation provider instead of a distribution model....” (DuPont’s SMF ¶ 83.) A new model called a “Regional Sales Office” was introduced. (Id. ¶ 84.)

DuPont appointed Parksite to be DuPont’s “Sales Affiliate” for the Regional Sales Office serving the New England GMA by written agreement dated March 29, 2006. (Id. ¶ 85; Plaintiffs SMF ¶ 188.) The Sales Affiliate Agreement provides by its express terms that it would be effective from the later of the date of final execution of the Agreement and “following the termination by DuPont of its incumbent distributor in the territory....” (Plaintiffs SMF ¶ 189.) In addition, during 2005, DuPont and Parksite had been engaged in discussions regarding the possibility of DuPont acquiring Parksite. (Id. ¶ 92.)

Under the Sales Affiliate Agreement, Parksite is solely responsible to: “perform ... functions and activities ... relating to the marketing, advertising and sales promotion of DuPont Products.... ” (DuPont’s SMF ¶ 86.) Specifically, the Sales Affiliate Agreement requires Parksite to: “represent, market and promote the use and sales of, to solicit offers to purchase and transmit offers to sell, in connection with” DuPont Corian® and DuPont Zodiaq® products. (Id. ¶ 87.) The Sales Affiliate Agreement requires DuPont to, among other things, provide and manage product inventory, take orders for products and deliver products to Parksite. (Id. ¶ 89.)

DuPont did not select Parksite to be the Sales Affiliate until late January 2006. (Id. ¶ 92.) As of January 16, 2006, C.H. Briggs was DuPont’s top choice to fill the role of Sales Affiliate for the New England GMA. (Id. ¶ 93.) C.H. Briggs was ultimately not selected because another distributor, Fessenden Hall, had terminated its distribution agreement with DuPont and DuPont asked C.H. Briggs to assume responsibility for the GMA previously served by Fessenden Hall. (Id. ¶ 94.) Parksite was chosen from among three other candidates to be the Sales Affiliate. (DuPont’s SMF ¶ 90.) As stated in the Sales Affiliate Agreement, Parksite was chosen because “it has the skills, capability and expertise in the marketing, sales promotion, advertising development and increase of trade” in connection with DuPont’s products. (Id. ¶ 91.)

On the date of the notice of NES’ termination, DuPont transmitted a broadcast communication to fabricators, retailers and builders in the New England GMA, in which DuPont advised that NES was to be terminated and explained the new RSO model for servicing New England. (Id. ¶ 95.) The list of entities to which the communication was transmitted was developed using DuPont’s databases, corianenterprise.com and salesforce.com. (Id. ¶ 96.) However, DuPont’s public databases contained limited information about NES’ fabricators and customers who m NES had identified and cultivated over the years. (Plaintiffs SMF ¶ 96.)

On the advice of counsel, DuPont waited for four hours, until 5 p.m. before it began communicating with NES’ customers and fabricators about NES’ termination. (Id. ¶ 192.) [REDACTED] The list of entities that DuPont and Parksite visited was developed using the two DuPont databases previously mentioned.

Some NES customers were told by agents of Defendants that NES was going out of business. (Plaintiffs SMF ¶ 195.) During the initial thirty day period, DuPont representatives met with various NES customers. (Id. ¶ 196.) During those meetings, DuPont representatives informed the customers that following the initial thirty day period, the customers would need to contract with DuPont to receive DuPont materials.

H. The G-19

[REDACTED] All members of the G-19, including Parksite and NES, executed a Mutual Confidentiality and Non-Disclosure Agreement (the “Confidentiality Agreement”). (Parksite’s SMF ¶¶ 29.) [REDACTED]

II. STANDARD OF REVIEW

Generally, a party is entitled to summary judgment if, on the record before the Court, it appears “that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). An issue is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A “material fact” is one that has “the potential to affect the outcome of the suit under the applicable law.” Nereida-Gonzalez v. Tirado-Delgado, 990 F.2d 701, 703 (1st Cir.1993).

The party moving for summary judgment must demonstrate an absence of evidence to support the nonmoving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In determining whether this burden is met, the Court must view the record in the light most favorable to the nonmoving party and give that party the benefit of all reasonable inferences in its favor. Santoni v. Potter, 369 F.3d 594, 598 (1st Cir. 2004). Once the moving party has made a preliminary showing that no genuine issue of material fact exists, the nonmoving party must “produce specific facts, in suitable evidentiary form, to establish the presence of a trialworthy issue.” Triangle Trading Co. v. Robroy Indus., Inc., 200 F.3d 1, 2 (1st Cir.1999) (citation and internal punctuation omitted); Fed.R.Civ.P. 56(e). “As to any essential factual element of its claim on which the nonmovant would bear the burden of proof at trial, its failure to come forward with sufficient evidence to generate a trialworthy issue warrants summary judgment to the moving party.” In re Spigel, 260 F.3d 27, 31 (1st Cir.2001) (citation and internal punctuation omitted).

III. DISCUSSION

Before turning to the substantive claims at issue in the Motions for Summary Judgment, the Court must address the threshold choice of law issue. The parties to this case have agreed that Delaware law applies to the contract-based claims and that Maine law should apply to the tort-based claims. Maine has not explicitly endorsed the principle of depecage. Cf. La Plante v. Am. Honda Motor Co., 27 F.3d 731, 741-42 (1st Cir.1994) (explaining the principle of depecage, under which a court applies the laws of different states to different substantive issues within a single case, and applying depecage to Rhode Island tort law); see also Collins v. Trius, Inc., 663 A.2d 570, 573 (Me.1995) (“In applying the ‘most significant contacts and relationships’ test, it is necessary to isolate the issue, to identify the policies embraced in the laws in conflict, and finally to examine the contacts with the respective jurisdictions to determine which jurisdiction has a superior interest in having its policy or law applied.”). Nonetheless, “[wjhere the parties ‘have reached a plausible agreement about what law governs, a federal court sitting in diversity jurisdiction is free to forgo independent inquiry and accept that agreement.’ ” First Marblehead Corp. v. House, 473 F.3d 1, 8 (1st Cir.2006) (citing Cochran v. Quest Software, Inc., 328 F.3d 1, 6 (1st Cir.2003)). Given the Delaware choice of law provision within the distribution agreements and the significant contact that the tort-based claims have with Maine, the Court finds the parties’ agreement to be reasonable. Thus, the Court will follow the parties’ agreement.

A. Breach of Contract & Unreasonable Termination of Distribution Agreements (Counts XIV & XV)

At the heart of this case lie the distributor agreements between DuPont and NES, and whether those agreements alone, or additional agreements and representations, control the relationship between the parties. Indeed, the basis for much of DuPont’s argument for summary judgment is that the distributor agreements preclude Plaintiffs claims. Because the 2000 Agreement unquestionably was in effect when NES was terminated, the Court will consider that document and its implications.

Several provisions of the 2000 Agreement are germane to the parties’ arguments. Most importantly, the 2000 Agreement contained an explicit termination provision, which stated: “either party may terminate this Agreement with or without cause, upon at least thirty (30) days prior written notice.” (Corian Authorized Distributor Agreement (Docket # 23-8) ¶ 2.A.) The parties also provided a means for modifying the contract. “This Agreement shall not be amended or modified orally, by usage of trade, or course of dealing and no amendment or modification shall be of any force or effect unless contained in a writing signed by both parties which expressly refers to modification or amendment of this Agreement.” (Id. ¶ 9.F.) Such a procedure was in fact used by the parties to modify the 2000 Agreement after NES acquired Kilstrom. Finally, the 2000 Agreement provided that the contract “fully and completely express[es] the entire understanding of the parties with respect to their relationship. The parties have entered into this Agreement ... with nether [sic] party relying upon any statement or representation not contained in this Agreement or the Schedules attached hereto.” (Id. ¶ 9.E.)

In opposing summary judgment, Plaintiff proffers numerous arguments regarding the 2000 Agreement. Plaintiff first asserts that numerous contracts controlled the relationship of the parties such that the Cour t should be unable to rely on the termination provision in the 2000 Agreement. The record before the Court demonstrates that at any given time, different agreements were in place. For example, there were separate written agreements for Corian®, Zodiaq® and Simplicity™. In addition, the 2000 Agreement provided that every year, NES and DuPont would agree to one and three year business plans for NES. Nonetheless, the three agreements just mentioned contained termination provisions similar or identical to that contained in the 2000 Agreement. Beyond these agreements and the business plans provided for in the contract, Plaintiff offers only bald assertions that other agreements controlled the relationship. Plaintiff has failed to raise a genuine issue of material fact as to the existence of other controlling contracts. Thus, for purposes of deciding the summary judgment motion presently before the Court, the Court will focus on the 2000 Agreement.

Plaintiff next claims that the termination provision is ambiguous and, therefore, there is a genuine issue of material fact regarding what constitutes reasonable notice of termination. Plaintiff asserts that the ambiguity arises from the inclusion of the words “at least” in the termination provision. Plaintiff argues: “The common sense meaning of the phrase ‘at least’ in modifying a period of time is ‘no less than,’ so the termination provision in the Corian Agreements must be read to mean that the terminated party would be entitled to no less than 30 days’ notice under the best of circumstances.” (Memorandum of Law in Opposition (Docket # 178) at 11.) Thus, Plaintiff argues, the circumstances surrounding the termination must be considered when evaluating what was reasonable.

Courts should give the terms in a contract their plain meaning. Hallowell v. State Farm Mut. Auto. Ins. Co., 443 A.2d 925, 926 (Del.1982) (stating that “if the language is clear and unambiguous a Delaware court will not destroy or twist the words under the guise of construing them”); see also Cont’l Ins. Co. v. Rutledge & Co., 750 A.2d 1219, 1228 (Del.Ch. 2000). Despite Plaintiffs argument, “at least thirty days notice” is not an ambiguous term in a contract; the phrase is not subject to multiple interpretations. The Court will not look behind or distort the clear terms of the contract to determine what would have been reasonable. See Hallowell, 443 A.2d at 926 (providing that in the context of an insurance contract, “a party will be bound by its plain meaning because creating an ambiguity where none exists could, in effect, create a new contract with rights, liabilities and duties to which the parties had not assented.”). The parties to the contract negotiated and contracted for the mutual right to terminate the agreement upon thirty days’ notice.

Finally, Plaintiff argues that the 2000 Agreement was modified such that the thirty day termination provision was not in effect when NES was terminated. Notably, the 2000 Agreement contained a means to modify the contract. The modification provision expressly disclaimed oral modification, modification by use or trade and required that all modifications be in writing. Nonetheless, “contract provisions deeming oral modifications unenforceable can be waived orally or by a course of conduct just like any other contractual provision.” Cont’l Ins. Co., 750 A.2d at 1229. A party claiming an oral modification must prove the alteration with “such specificity and directness as to leave no doubt of the intention of the parties to change what they previously solemnized by formal document.” Reeder v. Sanford School, Inc., 397 A.2d 139, 141 (Del.Super.Ct.1979).

Further, a written contract containing a prohibition against amendment except by written document may also be modified by a course of dealing. See Pepsi-Cola Bottling Co. v. Pepsico, Inc., 297 A.2d 28, 33 (Del.1972) (finding that an oral agreement regarding pricing between a manufacturer and bottler had been substituted for written pricing provisions in the contract where the bottler had accepted periodic price changes made by the manufacturer over the course of fifteen years). Where a course of conduct is alleged to have modified the contract, “a subsequent course of conduct must explicitly address the contract provision in order to modify the parties’ agreement.” KBQ, Inc. v. E.I. du Pont de Nemours & Co., 6 F.Supp.2d 94, 99 (D.Mass.1998) (citing Pepsi-Cola Bottling Co., 297 A.2d at 32-34). This high burden ensures that the party asserting the oral modification is not doing so in an attempt to alter negotiated but unfavorable terms to the contract. See Cont’l Ins. Co., 750 A.2d at 1230.

Here, Plaintiff points to the long course of dealing between the parties and DuPont’s characterization of the relationship as one requiring mutual loyalty and trust as evidence that the parties intended to abandon or ignore the thirty day termination provision. Plaintiffs argument, however, fails as a matter of law. Plaintiff has pointed to no evidence indicating that either party clearly expressed an intent to modify the termination clause. The mere existence of a long course of dealing, without more, is insufficient to modify the termination provision. Further, general statements of loyalty and trust are vague such that the Court is unable to determine, if there were a modification, what the terms of the contract would be. This course of conduct, taken as a whole, is not sufficiently specific and direct to modify the clear and unambiguous termination provision in the contract.

Therefore, the plain and clear language of the contract indicates that either party could terminate the distribution agreement upon at least thirty days’ notice, with or without cause. On April 4, 2006, DuPont delivered notices of termination of NES’ distributor agreements. The notices stated that the termination would be effective June 4, 2006. DuPont provided more time than required by the agreements in executing the termination. Further, DuPont was not required to provide cause for the termination. Therefore, DuPont is entitied to summary judgment on Count XIV. In addition, where the terms to the contract are clear, the Court will not look behind the contract to determine what is reasonable. See Hallowell, 443 A.2d at 926. Here, the Court will not undertake to determine whether the termination was reasonable, and thus, DuPont is entitled to summary judgment on Count XV.

In addition, Plaintiff asserts that the doctrine of recoupment bars summary judgment on the contract-based claims. The Eighth Circuit has provided: “The doctrine of recoupment is designed to remedy the inequity which arises when a manufacturer, after having required a distributor to make a sizeable investment in the furtherance of a distributorship, terminates the working relationship without just cause, leaving the distributor with substantial unrecovered expenditures.” Ag-Chem Equip. Co. v. Hahn, Inc., 480 F.2d 482, 486 (8th Cir.1973). The doctrine of recoupment relating to distributors and manufacturers largely has been recognized as a Minnesota doctrine. Indeed, Plaintiff has failed to proffer a single case where the doctrine is recognized in Delaware and this Court has been unable to locate such a case.

Furthermore, even if the Court were to recognize and apply the doctrine of recoupment to this case, it is doubtful that the doctrine would aid Plaintiff. An initial requirement for the doctrine to apply is that the agreement be terminable at will. Ag-Chem Equip. Co., 480 F.2d at 487. The Third Circuit, applying Minnesota law, found the doctrine of recoupment applicable where the agreement explicitly provided that it was terminable by either party, for any reason, upon sixty days written notice. Schultz v. Onan Corp., 737 F.2d 339, 347 (3d Cir.1984). Finding an agreement terminable at will and thus subject to the doctrine of recoupment, even when the parties have negotiated and contracted for a termination “for any reason” clause has been criticized. See Retail Assocs. v. Macy’s East, Inc., 245 F.3d 694, 698 (8th Cir.2001); Best Vendors Co. v. Air Express, Inc., 00-2224, 2002 WL 31163039, *8, 2002 U.S. Dist. LEXIS 18679, at * 24-26 (D.Minn. Sept. 23, 2002). Under that approach, “the right to equitable recoupment is divorced from breach of-contract analysis, and recoupment becomes a device by which judges may rescue a party from its bad bargain by taking money away from the other party, whose conduct has been wholly lawful.” Retail Assocs., 245 F.3d at 698; see also Best Vendors Co., 2002 WL 31163039, *8, 2002 U.S. Dist. LEXIS 18679, at *24-26. Rather, the doctrine of recoupment only comes into play where the agreement is silent as to duration or termination. The Court finds this reasoning persuasive. Thus, even if the doctrine of recoupment could be applied to this case, it is unlikely that it would be of benefit to Plaintiff.

B. Promissory Estoppel (Count XI)

Count XI asserts a cause of action for promissory estoppel. In order to state a claim for promissory estoppel, NES must establish by clear and convincing evidence that “(i) a promise was made; (ii) it was the reasonable expectation of the promisor to induce action or forbearance on the part of the promisee; (iii) the promisee reasonably relied on the promise and took action to his detriment; and (iv) such promise is binding because injustice can be avoided only by enforcement of the promise.” Chrysler Corp. v. Chaplake Holdings, Ltd., 822 A.2d 1024, 1032 (Del.2003). The promises that form the basis for the claim must be sufficiently definite and certain so that the Court can ascertain the intentions of the parties. Cont’l Ins. Co., 750 A.2d at 1233; State v. Simpson, 1990 WL 143837, 1990 Del. Ch. LEXIS 149 (Del. Ch. Sept. 24, 1990) (“In order for a statement to be relied upon as creating an estoppel, its language must be clear and plain.”).

Plaintiff offers three promises to form the basis of the count for promissory estoppel: (1) DuPont promised not to terminate NES without cause, (2) DuPont promised to act as a partner with NES, and (3) DuPont promised to be loyal to the interests of NES. (Second Amended Complain (Docket # 65) at 19; Memorandum of Law in Opposition (Docket # 178) at 45.) Plaintiff has brought forward no evidence that DuPont promised, at any time, not to terminate NES without cause.

Plaintiffs two remaining bases for promissory estoppel fail at the first step. Vague statements of acting as a partner and loyalty are not sufficiently clear and definite to form the basis for a valid action of promissory estoppel. By contrast, in King v. Limestone Valley Enters., L.P., Mr. Rappucci owned a beauty salon located in the same shopping center as Ms. King’s day spa. 18787-NC, 2002 WL 853552, **1-3, 2002 Del. Ch. LEXIS 47, at *2-7 (Del. Ch. April 24, 2002) Before opening her day spa, Ms. King sought assurances from Mr. Rappucci that he would not offer services that could compete with her intended business. Id., 2002 WL 853552, *1, 2002 Del. Ch. LEXIS 47, at *3. Based on these representations, Ms. King opened a day spa. Id., 2002 WL 853552, *5, 2002 Del. Ch. LEXIS 47, at *17-18. The court found that Mr. Rappucci made a definite and clear promise to Ms. King that Mr. Rappucci’s salon would not provide day spa services in competition with Ms. King’s day spa sufficient to form the basis of a promissory estoppel claim. Id. King v. Limestone Valley Enters., L.P. stands in contrast to the present case. Here the Court is unable to determine what the parties intended based on vague assurances of partnership and loyalty. Dion stated at his deposition that “loyalty” was understood to mean local advertising support. Even with this understanding, the Court must attempt to look behind the vague statements to ascertain the intentions of the parties. Further, there is no evidence before the Court that DuPont failed to provide such support. Thus, Plaintiff has failed to raise a genuine issue of material fact as to the claim for promissory estoppel. The Court grants DuPont summary judgment on Count XI.

C. Breach of Covenant of Good Faith and Fair Dealing (Count XII)

Count XII asserts a cause of action for breach of the covenant of good faith and fair dealing. The covenant of good faith and fair dealing “requires a party in a contractual relationship to refrain from arbitrary or unreasonable conduct which has the effect of preventing the other party to the contract from receiving the fruits of the contract.” Wilgus v. Salt Pond Inv. Co., 498 A.2d 151, 159 (Del.Ch.1985) (citing Restatement (Second) of Contracts § 205 (1981)); see also Dunlap v. State Farm Fire & Cas. Co., 878 A.2d 434, 442 (Del. 2005). The covenant of good faith and fair dealing, in Delaware, is best understood as a means of implying terms in an agreement. A court should invoke the covenant only when

[it is] clear from what was expressly agreed upon that the parties who negotiated the express terms of the contract would have agreed to proscribe the act later complained of as a breach of the implied covenant of good faith — had they thought to negotiate with respect to that matter. If the answer to this question is yes, then ... a court is justified in concluding that such act constitutes a breach of the implied covenant of good faith.

Katz v. Oak Industries, Inc., 508 A.2d 873, 880 (Del.Ch.1986). Courts have emphasized that use of the covenant of good faith and fair dealing should be rare, fact intensive and governed solely by issues of compelling fairness. Cont’l Ins. Co., 750 A.2d at 1234.

Plaintiff claims that DuPont violated the covenant by failing to disclose its intention to terminate NES, terminating upon only sixty days’ notice and doing so without cause. DuPont counters that the covenant cannot be construed to require performance or a condition that is in conflict with an express provision of the contract. Indeed, “[e]xisting contract terms control ... such that implied good faith cannot be used to circumvent the parties’ bargain, or to create a free-floating duty ... unattached to the underlying legal document. Thus, one generally cannot base a claim for breach of the implied covenant on conduct authorized by the terms of the agreement.” Dunlap, 878 A.2d at 441. By asserting that DuPont should have disclosed the termination earlier, provided more notice or not terminated without cause, Plaintiff essentially seeks to modify the terms of the contract. The parties specifically addressed termination in the contract; the covenant of good faith and fair dealing will not be used to rewrite the contract.

Furthermore, Plaintiffs New Jersey Supreme Court decisions cited in support are inapposite. See Sons of Thunder, Inc. v. Borden, Inc., 148 N.J. 396, 690 A.2d 575 (1997); Bak-A-Lum Corp. v. Alcoa Building Products, Inc., 69 N.J. 123, 351 A.2d 349 (1976). For example, in Balo-A-Lum Corp. v. Alcoa Bldg. Products, Inc., the New Jersey Supreme Court found a breach of the covenant where the Defendant had decided to terminate Plaintiffs distributorship, and withheld that information while encouraging Plaintiff in a major expansion and signing a five year lease. 351 A.2d at 351-52. In the case before the Court, however, NES acquired the Kilstrom distributorship in 2002 and expanded in 2004, but the earliest DuPont began to consider termination was late 2005. The issues of compelling fairness present in Balc-A-Lum are simply not present with regard to DuPont’s termination and its performance related to termination. DuPont is therefore entitled to summary judgment on this claim to the extent the claim centers on NES’ termination.

Plaintiff also argues that DuPont violated the covenant when DuPont acquired NES’ customer lists and sales data through false representations. In February 2006, DuPont invited all distributors of Corian® products to participate in the “Get a Cool Deal on Corian” promotion and requested that the distributors submit certain data to DuPont. In March 2006, a DuPont representative requested that NES provide a more accurate customer list and stated that NES’ participation in the promotion would be approved once the information was received. [REDACTED] Genuine issues of material fact exist with regard to the conduct surrounding the acquisition of the customer lists. DuPont’s motion for summary judgment as to Count XII is denied as to the customer lists.

D. Breach of Fiduciary Duty (Count VIII)

Count VIII asserts a claim for breach of fiduciary duty against DuPont. At the threshold, the Court must determine whether a fiduciary relationship existed between DuPont and NES. Under Maine law, in order to establish a fiduciary relationship there must be “(1) the actual placing of trust and confidence in fact by one party in another, and (2) a great disparity of position and influence between the parties at issue.” Bryan R. v. Watchtower Bible, Tract Soc’y, Inc., 738 A.2d 839, 846 (Me.1999) (quoting Morris v. Resolution Trust Corp., 622 A.2d 708, 712 (Me.1993)). Fiduciary relationships have been found to exist in numerous situations, including between business partners, families engaged in financial transactions and among shareholders in a close corporation. See id. (collecting cases). The finding of a fiduciary duty “may be based on moral, social, domestic, or merely personal duties, [but] it does not arise merely because of the existence of kinship, friendship, business relationships, or organizational relationships.” Id. (internal citations and quotations omitted).

In Maine, the Law Court has found that a franchise-like relationship is generally insufficient to find a fiduciary relationship. See Webber Oil Co. v. Murray, 551 A.2d 1371, 1375 (Me.1988). In Webber Oil Co. v. Murray, Webber agreed to provide gasoline to the public through pumps owned by Webber at a convenience store owned by Murray. Id. at 1373. Murray staffed the pumps, collected the sales and paid the proceeds to Webber. Id. Through the course of their relationship, Webber loaned money to Murray, and Murray and his wife signed promissory notes to Webber. Id. While acknowledging that other courts have found a fiduciary relationship between franchisor and franchisee, the Law Court declined to find a fiduciary relationship in this situation. Id. at 1375. “The evidence here showed no such relationship, but rather only a conventional business deal. Certainly one party was economically stronger than the other, but that is often the case in a business deal, and not the basis for a finding of a relationship of confidence.” Id.

Ordinarily, a business relationship like that between NES and DuPont will not give rise to fiduciary duties. See, e.g., KBQ, Inc., 6 F.Supp.2d at 101; Webber Oil Co., 551 A.2d at 1375. There has been no showing that NES was completely dependent on DuPont and necessarily reposed trust and confidence in DuPont. Rather the evidence before the Court shows that DuPont generally encouraged trust, confidence and loyalty between the two parties. Mere recitations and references to trust, however, are insufficient to give rise to fiduciary duties. While NES believed that it wielded little power against DuPont, like DuPont, NES was free to terminate the contract upon thirty days notice. DuPont did have some voice in the management of NES, such as reviewing business plans as provided in the contract and discouraging NES from carrying competing business lines, but that involvement did not rise to the level required to find a fiduciary relationship. See KBQ, Inc., 6 F.Supp.2d at 101. Because there is no fiduciary relationship between these two business entities, DuPont is entitled to summary judgment on Count VIII.

E. Breach of Fiduciary Duty (Count IX)

DuPont and Parksite move for summary judgment on Count IX, which asserts a claim for breach of fiduciary duty. For the reasons previously stated, summary judgment is granted with respect to the claim against DuPont.

Parksite moves for summary judgment on Count IX on the ground that no fiduciary relationship exists between NES and Parksite. [REDACTED] Ordinarily, a court will not find a fiduciary relationship among two corporations whose relationship is governed by a contract. “Maine ... recognizes a fiduciary obligation only when ‘the relations between two persons are such that one is completely dependent and relies upon and necessarily reposes confidence in the other.’ ” Webber Oil Co., 551 A.2d at 1375 (quoting Small v. Nelson, 137 Me. 178, 16 A.2d 473, 475 (1940)). [REDACTED]

First, vague statements of trust and assertions of agency are insufficient to give rise to fiduciary duties. See Bryan R., 738 A.2d at 846. [REDACTED] To the contrary, the evidence shows that these two companies signed an arms-length contract [REDACTED]. See Leighton v. Fleet Bank of Maine, CV-91-1208, 1992 Me.Super. LEXIS 96, at *20 (Me.Super. Ct. April 15, 1992) (finding no fiduciary duty where the parties dealt with each other at arms length); Diversified Foods, Inc. v. First Nat’l Bank of Boston, CV-89-1073, CV-89-1082, 1991 Me.Super. LEXIS 84, at *50-51 (Me.Super. Ct. April 18, 1991) (stating that experienced business entrepreneurs who had previously negotiated the terms of loans with banks could not articulate a fiduciary relationship with a bank); Marquis v. State, CV-89-83, 1991 Me.Super. LEXIS 46, at *17 (Me.Super.Ct. Feb. 13, 1991) (stating that “parties to a contract who bargain at an arms-length with each other do not undertake any special relationship.”). [REDACTED] See Bryan R., 738 A.2d at 846 (“A fiduciary duty will be found to exist, as a matter of law, only in circumstances where the law will recognize ... a reasonably basis for the placement of trust and confidence in the superior party....”). The Court declines to find a fiduciary relationship between two independent companies who join together under contract [REDACTED]. Parksite is entitled to summary judgment on Count IX.

F. The Connecticut Franchise Act (Count I)

Turning to Count I, Plaintiff asserts a claim for violation of the Connecticut Franchise Act, Conn. Gen.Stat. § 42-133e et seq., which prohibits a franchisor from terminating or failing to renew a franchise, except for good cause. Id. § 42-133f(a). The Act, however, only applies to franchise agreements “the performance