Full opinion text
OPINION AND ORDER KENNETH M. KARAS, District Judge: Plaintiff Medtech Products Inc. (“Med-tech”) filed this consolidated action against Defendants DenTek Oral Care, Inc. (“DenTek”), Kelly M. Kaplan (“Kaplan”), Ray Duane (“Duane”), and C.D.S. Associates, Inc. (“C.D.S.”) (collectively, “Defendants”), alleging patent, trademark, and copyright infringement, as well as unfair competition, breach of contract, tortious interference with contractual relations, civil conspiracy, trade secret misappropriation, and tortious interference with an advantageous business relationship. Before the Court are Defendants’ various motions to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), as well as Medtech’s Motion to Strike DenTek’s Memorandum of Law, Medtech’s Motion to Strike C.D.S.’ Motion to Dismiss, and DenTek’s Motion to Compel Medtech to disclose with particularity those trade secrets that were allegedly misappropriated. I. Background The Court assumes the Parties’ familiarity with the factual and procedural background of this case as it is thoroughly set forth in Magistrate Judge Lisa Margaret Smith’s Report & Recommendation dated June 2, 2008 (“R & R”). In her R & R, Magistrate Judge Smith has recommended that this Court adopt the following rulings with respect to the pending motions: (1) deny Medtech’s Motion to Strike C.D.S.’ Motion to Dismiss (R & R 800 n. 3); (2) deny Medtech’s Motion to Strike DenTek’s Memorandum of Law (id. 802); (3) deny Defendants’ Motions to Dismiss Medtech’s trade secret misappropriation claims (id. 806; (4) grant Kaplan and Duane’s Motions to Dismiss Medtech’s claim for breach of the Proprietary Information and Inventions Agreement (“PIIA”) (id. 810-11); (5) deny Duane and C.D.S.’ Motion to Dismiss Medtech’s breach of contract claim based on the non-compete and non-solicitation clauses of the Consulting Agreement (id. 811); (6) deny C.D.S.’ Motion to Dismiss Medtech’s breach of contract claim based on the confidentiality provisions of C.D.S.’ PIIA (id.); (7) deny Duane and Kaplan’s Motions to Dismiss Medtech’s breach of contract claim based on their respective General Releases (id.); (8) grant Defendants’ Motions to Dismiss Medtech’s civil conspiracy claim (id. 812); (9) grant DenTek’s Motion to Dismiss Medtech’s claim for tortious interference with contractual relations (id. 814); (10) grant Duane’s Motion to Dismiss Medtech’s tortious interference with contractual relations claim (id. 814-15); (11) grant Defendants’ Motions to Dismiss Medtech’s claims for tortious interference with advantageous business relationship/economic advantage (id. 816); (12) deny DenTek’s Motion to Dismiss Med-tech’s claims for unjust enrichment and unfair competition (id. 818); and (13) deny DenTek’s Motion to Compel Medtech to disclose the precise trade secrets allegedly misappropriated until Medtech has had the opportunity to conduct limited discovery on the trade secret claim (id. 819-20). All Parties have filed timely and specific objections to the R & R. II. Discussion A. Standard of Review 1. Review of Magistrate Judge's Report cfe Recommendation A district court reviewing a report and recommendation addressing a dispositive motion “ ‘may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.’ ” Donahue v. Global Home Loans & Fin., Inc., No. 05-CV-8362, 2007 WL 831816, at *1 (S.D.N.Y. Mar. 15, 2007) (quoting 28 U.S.C. § 636(b)(1)(c)). Under 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b), parties may submit objections to the magistrate judge’s report and recommendation. The objections must be “specific” and “written,” Fed.R.Civ.P. 72(b)(2), and must be made “[w]ithin 10 days after being served with a copy of the recommended disposition.” Id.) see also 28 U.S.C. § 636(b)(1)(c). Where a party submits timely objections to a report and recommendation, as the Parties have here, the district court reviews the parts of the report and recommendation to which the party objected under a de novo standard of review. See 28 U.S.C. § 636(b)(1)(c) (“A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made”); Fed.R.Civ.P. 72(b)(3) (“The district judge must determine de novo any part of the magistrate judge’s disposition that has been properly objected to.”); see also Donahue, 2007 WL 831816, at *1. The district court may adopt those portions of a report to which no objections have been made, as long as those portions are not clearly erroneous. See Pizarro v. Bartlett, 776 F.Supp. 815, 817 (S.D.N.Y.1991). With regard to a magistrate judge’s decision on a non-dispositive matter, such as a discovery dispute between the parties, “[t]he district judge in the case must consider timely objections and modify or set aside any part of the order that is clearly erroneous or is contrary to law.” Fed.R.Civ.P. 72(a). “Pursuant to this highly deferential standard of review, magistrates are afforded broad discretion in resolving discovery disputes.” Aurora Loan Servs. v. Posner, 499 F.Supp.2d 475, 477 (S.D.N.Y.2007) (internal quotation marks omitted). 2. Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6) The Supreme Court has held that “[wjhile a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiffs obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964-65, 167 L.Ed.2d 929 (2007) (citations omitted and second alteration in original). In Twombly, id. at 1964-69, the Supreme Court also abandoned reliance on the oft-cited line from Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), that, “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” As the Court explained, a literal application of Conley’s “no set of facts” rationale is improper because “a wholly conclusory statement of claim would survive a motion to dismiss whenever the pleadings left open the possibility that a plaintiff might later establish some ‘set of [undisclosed] facts’ to support recovery.” Twombly, 127 S.Ct. at 1968 (alteration in original). Instead, the Court emphasized that “[f]actual allegations must be enough to raise a right to relief above the speculative level ... [,]” id. at 1965, and “once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint[,]” id. at 1969. Plaintiffs must allege “enough facts to state a claim to relief that is plausible on its face.” Id. at 1974. If Plaintiffs “ha[ve] not nudged their claims across the line from conceivable to plausible, [them] complaint must be dismissed.” Id.; see also Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir.2007) (“After careful consideration of the Court’s opinion and the conflicting signals from it that we have identified, we believe the Court is not requiring a universal standard of heightened fact pleading, but is instead requiring a flexible ‘plausibility standard,’ which obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible.” (emphasis in original)). A Rule 12(b)(6) motion to dismiss requires a court to “aecept[ ] all factual allegations in the complaint and draw[] all reasonable inferences in the plaintiffs favor.” Ruotolo v. City of New York, 514 F.3d 184, 188 (2d Cir.2008); see also Grandon v. Merrill Lynch & Co., 147 F.3d 184, 188 (2d Cir.1998) (noting court must “accept as true the factual allegations made in the complaint and draw all inferences in favor of the plaintiffs”); Blimpie Int’l, Inc. v. Blimpie of the Keys, 371 F.Supp.2d 469, 470-71 (S.D.N.Y.2005). “In adjudicating a Rule 12(b)(6) motion, a district court must confine its consideration ‘to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial notice may be taken.’ ” Glidepath Holding B.V. v. Spherion Corp., 590 F.Supp.2d 435, 450 (S.D.N.Y.2007) (quoting Leonard F. v. Israel Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir.1999)). B. Analysis 1. Medtech’s Motions to Strike Magistrate Judge Smith recommended that this Court deny Medtech’s Motion to Strike C.D.S.’ Motion to Dismiss. (R & R 800 n. 3.) Medtech has not objected to this recommendation. Having reviewed the recommendation for clear error and found none, the Court adopts Magistrate Judge Smith’s recommendation and denies Med-tech’s Motion to Strike C.D.S.’ Motion. Medtech also moved to strike DenTek’s Motion to Dismiss on the ground that it is “replete with information that cannot be considered in determining a motion to dismiss.” (PI. Medtech Products Inc.’s Mot. to Strike DenTek Oral Care, Inc.’s Mot. and Mem. of Law in Supp. of its Mot. for (A) Partial Dismissal of the Second Am. Compl. and (B) Entry of a Protective Order and Order Compelling Disclosure of Alleged Trade Secrets 1-2 (“PL’s Mot. to Strike DenTek’s Mot.”).) In the R & R, Magistrate Judge Smith recommended that this Court deny Medtech’s Motion to Strike, finding that “such drastic measures ... need not be taken.” (R & R 803.) Instead, Magistrate Judge Smith excluded improper exhibits from consideration on this Motion. (Id.) None of the Parties has objected to this portion of the R & R. The Court adopts Magistrate Judge Smith’s recommendation in this regard and denies Medtech’s Motion to Strike DenTek’s Motion to Dismiss. 2. Motions to Dismiss a. Trade Secret Misappropriation Claims In the R & R, Magistrate Judge Smith recommended that this Court deny Defendants’ Motions to Dismiss Plaintiffs trade secret misappropriation claims. (R & R 806.) Defendants have all filed timely objections to this portion of the R & R, so this Court has reviewed de novo the issue of whether Plaintiff has sufficiently alleged a claim for trade secret misappropriation. For the reasons set forth in Magistrate Judge Smith’s thorough R & R, as well as for those stated below, the Court concludes that, for purposes of the present Motions, Medtech has adequately alleged a claim of trade secret misappropriation and, therefore, Defendants’ Motions to Dismiss that claim should be denied. “To succeed on a claim for the misappropriation of trade secrets under New York law, a party must demonstrate: (1) that it possessed a trade secret, and (2) that the defendants used that trade secret in breach of an agreement, confidential relationship or duty, or as a result of discovery by improper means.” N. Atl. Instruments, Inc. v. Haber, 188 F.3d 38, 43-44 (2d Cir.1999); see also Faiveley Transp. Malmo AB v. Wabtec Corp., 572 F.Supp.2d 400, 404 (S.D.N.Y.2008) (citing N. Atl. Instruments). New York courts define a “trade secret” as “any formula, pattern, device or compilation of information which is used in one’s business, and which gives [the owner] an opportunity to obtain an advantage over competitors who do not know or use it.” N. Atl. Instmments, 188 F.3d at 44 (internal quotation marks omitted). A trade secret, however, “is not simply information as to single or ephemeral events in the conduct of the business; rather, it is a process or device for continuous use in the operation of the business.” Sit-Up Ltd. v. IAC/InterActiveCorp., No. 05-CV-9292, 2008 WL 463884, at *8 (S.D.N.Y. Feb. 20, 2008) (quoting Softel, Inc. v. Dragon Med. & Scientific Commc’ns, Inc., 118 F.3d 955, 968 (2d Cir.1997)). “The most important consideration remains whether the information was' secret.” Payment Alliance Int’l, Inc. v. Ferreira, 530 F.Supp.2d 477, 481 (S.D.N.Y.2007) (quoting Lehman v. Dow Jones & Co., 783 F.2d 285, 298 (2d Cir.1986)) (internal quotation marks omitted). Whether the information was secret is “generally a question of fact.” Ashland Mgmt., 604 N.Y.S.2d 912, 624 N.E.2d at 1013 (internal citations omitted). Medtech alleges that it, and its predecessor in interest, Dental Concepts LLC (“Dental Concepts”), “expended considerable time, effort, and money developing its trade secrets, including but not limited to manufacturing cost details, drawings, test data, and other information about the design and manufacturing process for its dental protectors.” (Second Am. Compl. (“SAC”) ¶275.) Medtech alleges that Kaplan and Duane were “involved extensively in every aspect of the NIGHTGUARD™ business including brand development and marketing, and the formulation of strategic sales and market goals and initiatives ... [, and were] intimately familiar with Dental Concepts’ consultants, brokers, designers, suppliers, product formulation and production sources, and marketing strategies.” (Id. ¶ 41.) Further, Medtech alleges that it shared its trade secrets with Kaplan and Duane pursuant to confidentiality agreements, in which they “agreed not to divulge or appropriate for their own use or to the use of others any secret or confidential information or knowledge obtained by them or disclosed to them during their employment at Medtech.” (Id. ¶ 278.) Despite these confidentiality agreements, according to Medtech, “Duane and Kaplan used Medtech’s trade secrets in the performance of their duties at DenTek for their own benefit and disclosed Medtech’s trade secrets to DenTek and its employees and officers.” (Id. ¶ 280.) Medtech alleges that DenTek had “reason to know and, upon information and belief, did know at and/or after the time that Duane and Kaplan disclosed Medtech’s trade secrets, and at and/or after the time DenTek made use of these trade secrets, that these trade secrets came from Medtech, and that Duane and Kaplan owed a duty to Med-tech to maintain their secrecy.” (Id. ¶ 281.) According to Medtech, DenTek had no experience in the dental protector market (id. If 127), yet “[b]y virtue of Duane and Kaplan’s inside information, DenTek was able to virtually eliminate the development time normally associated with entering into a new line of products” (id. ¶ 128). Further, Medtech alleges that “[a]ll evaluation and vetting processes were truncated based on Duane and Kaplan’s inside information about suppliers, designers, consultants, and legal advisors.” (Id. ¶ 129.) In sum, Medtech alleges that due to the confidential and proprietary information provided to DenTek by Duane and Kaplan, DenTek was aware of Medtech’s strategic decisions (for example, to maintain a three-size platform for its product) and was able to create a competing product on an expedited basis, cutting out a time-consuming and expensive development process, and allowing DenTek to seize a limited opportunity with a large retailer. (R & R 805; SAC ¶¶ 110, 123-124, 127-130, 163, 181-82, 275-77, 280.) Magistrate Judge Smith recommended that this Court find these allegations sufficient to survive Defendants’ Motions to Dismiss Plaintiffs trade secret misappropriation claims. (R & R 805.) Defendants object to this recommendation, arguing that Plaintiffs vague and conclusory allegations do not sufficiently allege its possession of trade secrets. (Def. Kelly M. Kaplan’s Objections to Magistrate Judge Smith’s Report and Recommendation Dated June 2, 2008 Regarding, Among Other Things, Defs.’ Mots, to Dismiss the Second Am. Compl. (“Kaplan Obj.”) 4-5; Def. DenTek Oral Care, Inc.’s Objections to the Report & Recommendation of Magistrate Judge Smith Dated June 2, 2008 (“DenTek Obj.”) 6-9.) In particular, Defendants contend that Plaintiff never identified the allegedly misappropriated trade secrets. (Kaplan Obj. 4; DenTek Obj. 5 (“DenTek seeks a specific identification of the trade secrets allegedly used by DenTek now so that it may assess whether they are in fact trade secrets under the factors that apply under New York law, whether any use was ever made by DenTek of any such ‘secrets,’ and to forestall needless burden and expense.”).) Further, Defendants argue that any trade secrets that can be gleaned from Plaintiffs allegations — such as Medtech’s decision to maintain its three-size platform and its relationships with various vendors — do not qualify as trade secrets. (DenTek Obj. 10-15; Kaplan Obj. 5, 9-10.) Finally, Defendants object to Magistrate Judge Smith’s conclusion that Plaintiff sufficiently alleged the second element of its trade secret misappropriation claim because, again, the trade secrets allegedly misappropriated are not identified, so, according to Defendants, Medtech has failed to allege that any particular trade secret was improperly disclosed by Kaplan and Duane and used by DenTek. (DenTek Obj. 17-18; Kaplan Obj. 10-12.) The Court recognizes that Med-tech, for the most part, does not specify the particular trade secrets at issue in this case, but instead categorizes them generally as “manufacturing cost details, drawings, test data, and other information about the design and manufacturing process for its dental protectors.” (SAC ¶ 275.) However, specificity as to the precise trade secrets misappropriated is not required in order for Medtech to defeat the present Motions to Dismiss. See SD Protection, Inc., 498 F.Supp.2d at 586 (denying motion to dismiss where plaintiff alleged the existence of legitimate trade secrets, and making clear that plaintiff “has no obligation to reveal those secrets in the Complaint simply to prove that they exist”); Am. Bldg. Maint. Co. of N.Y. v. Acme Prop. Servs., Inc., 515 F.Supp.2d 298, 309 (N.D.N.Y.2007) (denying defendant’s motion to dismiss plaintiffs claim for trade secret misappropriation, and finding plaintiff’s allegations, “which the Court must accept at this stage of the litigation, suggest that it could prevail on this cause of action and entitle it to gather and present related evidence”); Gaetano Assocs. Ltd. v. Artec Collections, Inc., No. 05-CV-3329, 2006 WL 3026080, at *2 (S.D.N.Y. Oct. 25, 2006) (addressing argument that defendants’ trade secret misappropriation counterclaim failed to specify certain details, by stating that “[u]nder the notice pleading standard, however, defendants are not required to do so”). The Court is no more persuaded by the claim that Medtech has failed to identify the trade secrets Kaplan and Duane revealed to the other Defendants. It is true that Medtech does not deny that the Second Amended Complaint for the most part fails to specify the particular trade secrets allegedly misappropriated by Defendants. Medtech nonetheless argues that “[t]o require any greater level of specificity in the Second Amended Complaint would place an onerous burden on Medtech, essentially requiring it to detail information to which it has no access outside of discovery.” (Pl. Medtech Products Inc.’s Response to Defs.’ DenTek Oral Care, Inc.’s, Kelly M. Kaplan’s, Ray Duane’s, and C.D.S. Associates, Inc.’s Mots, to Dismiss 20.) According to Medtech, identification of the allegedly misappropriated trade secrets is not required until Medtech has had the opportunity for discovery. (Id.) In fact, the case principally relied on by Defendants for the proposition that specificity is required in the Complaint granted defendants’ motion for summary judgment (and not a motion to dismiss), “following massive document discovery.” See Sit-Up Ltd., 2008 WL 468884, at *5, 12. Here, there has been no discovery, but the Court finds that Medtech has stated a claim for trade secret misappropriation. Medtech alleges that Kaplan and Duane, who had extensive knowledge of Medtech’s business and the production process for the NightGuard-™, disclosed Medtech’s trade secrets in violation of confidentiality agreements in place, and that, shortly thereafter, DenTek, a company with no experience in the dental protector market, was able to rush a dental protector to the market, without going through any development process. These allegations make Medtech’s claim for trade secret misappropriation plausible. See Twombly, 127 S.Ct. at 1974. The question of whether it will ultimately be successful cannot be answered at this stage of the case. Thus, for these and the reasons outlined by Magistrate Judge Smith, Defendants’ Motions to Dismiss Medtech’s trade secret misappropriation claim are denied. b. Breach of Contract Claims i. Application of the Non-Compete and Non-Solicitation Clause of the Consulting Agreement Medtech alleges that the Duane Defendants breached the non-compete and non solicitation clause (“NC/NS clause”) of the Consulting Agreement entered into by Dental Concepts and the Duane Defendants on September 30, 1999, by “working for a company competitive to Dental Concepts; and soliciting, enticing and inducing suppliers and accounts of Medtech; soliciting, enticing and inducing employees of Medtech.” (SAC ¶ 231.) The Duane Defendants moved to dismiss this claim, arguing that the NC/NS clause was inapplicable in this case. (Mem. of Law by Defs. Ray Duane and C.D.S. Associates, Inc. in Supp. of Their Mot. to Dismiss the Second Am. Compl. and For Other Relief (“Duane Defs.’ Mem.”) 9-10.) Magistrate Judge Smith, finding the Consulting Agreement and the NC/NS clause unambiguous, rejected the Duane Defendants’ argument and recommended that this Court find that the NC/NS clause of the Consulting Agreement applied under the circumstances surrounding Duane and C.D.S.’ termination from Dental Concepts. (R & R 808.) In particular, Magistrate Judge Smith found that Plaintiffs allegation that “CDS and Duane declined continued employment in a sales position that was offered by Prestige” (SAC ¶ 88), the company that acquired Dental Concepts in 2005 and ultimately integrated Dental Concepts into Medtech, sufficiently alleged that the Consulting Agreement was terminated voluntarily by the Duane Defendants. (R & R 808.) The Duane Defendants object to Magistrate Judge Smith’s recommendation, and argue that the NC/NS clause does not apply in this case because the Second Amended Complaint fails to allege that the Consulting Agreement was terminated by the Duane Defendants or by Dental Concepts for just cause, which are the only two triggering events for the clause. (Duane Defs. Obj. 9-10.) The Duane Defendants argue further that the allegation that they turned down “employment” offered to them by Prestige establishes only that the Duane Defendants were offered an inferior position to that which they held under the Consulting Agreement — one which Prestige knew the Duane Defendants would turn down. (Id. 11-12.) Prestige acquired Dental Concepts in November 2005 (SAC ¶71), but Medtech alleges that “CDS and Duane continued consulting for Medtech through and including February 2006[, and that] Duane stayed on board until Dental Concepts was completely transitioned into Medtech” (id. ¶ 87). Moreover, Medtech alleges that “[t]he Consulting Agreement’s Covenant Not to Compete and Non-Solicitation Agreement survived the acquisition and were applicable to any consulting work of Duane and CDS after the acquisition.” (Id. ¶ 93.) Accepting all factual allegations in the Second Amended Complaint and drawing all reasonable inferences in the plaintiffs favor, the Court finds these allegations, combined with the allegation that the Duane Defendants “declined continued employment in a sales position that was offered by Prestige” (id. ¶ 88), sufficient to make plausible the fact that the NC/NS clause was triggered when the Duane Defendants declined continued employment with Prestige. The Duane Defendants quibble with Medtech’s use of the words “employment” and “sales position” (id. ¶ 88), and argue that their decision to “ ‘declinef ]’ ” such a position is not the same as terminating the engagement under the Consulting Agreement. (Duane Defs. Obj. 12.) According to the Duane Defendants, “the SAC does not allege that the ‘sales position’ offered to the Duane Defendants was comparable to the position they held under the Consulting Agreement.” (Id.) Yet the fact that the Consulting Agreement describes the Duane Defendants’ engagement with Dental Concepts as “direct[ing] and supervisfing] the sales of [Dental Concepts’] products” (SAC, Ex. A, ¶ 1) undercuts the Duane Defendants’ argument that the Court should somehow be able to glean from the term “sales position” that Med-tech’s allegation refers to something other than the consulting engagement. In any event, the Duane Defendants’ factual arguments can be addressed at an appropriate time, when the Parties will have the opportunity to present evidence from which a determination can be made as to whether the Duane Defendants’ declination of the sales position constituted their termination of the consulting engagement under the terms of the Consulting Agreement and its NC/NS clause. Thus, for these, and the reasons set forth in the R & R, the Court finds that Medtech’s allegations survive the Duane Defendants’ Motion to Dismiss on the issue of the NC/NS clause’s applicability. ii. The Effect of the General Releases on the PIIAs Duane (on behalf of himself and C.D.S.) and Kaplan each signed a PILA with Dental Concepts in September 1999 (SAC, Exs. C, D), which contains a confidentiality provision that they are alleged to have breached by providing confidential and proprietary information to DenTek (id. ¶¶ 282, 241). Duane and Kaplan later each signed a General Release in November 2005 (id., Exs. G, H), the confidentiality provisions of which they are also alleged to have breached “by providing DenTek with Medtech’s confidential and proprietary information” (id. ¶250). Defendant Kaplan and the Duane Defendants argue that Medtech’s breach of contract claims based on the PIIAs should be dismissed because the confidentiality provisions of the PILA were superseded by the confidentiality requirements in their respective General Releases. Magistrate Judge Smith recommended this Court conclude that “because the confidentiality provisions of the PIIAs and the General Releases cover the same rights of the parties and address precisely the same subject matter — confidentiality—and in light of the integration and merger clause in the General Releases, the confidentiality provisions of the PIIAs are superseded by the General Releases with respect to Duane and Kaplan[, and therefore that] Medtech’s claim against Duane and Kaplan for breach of the PIIAs should be dismissed.” (R & R 811.) Medtech objects to this recommendation, arguing that “the terms of the General Release do not supersede the PIIA, and that its claims for breach of the PIIA are proper causes of action,” because “[t]he PIIA and the General Release were intended to serve different purposes and, accordingly, cover different subject matters.” (PI. Medtech Products Inc.’s Objections to Magistrate Judge’s Report and Recommendation Regarding Defs.’ Mots, to Dismiss (“Medtech Obj.”) 9-10.) In its objections, Medtech parses the PIIA and General Release in an effort to demonstrate to the Court the ways in which the PIIA’s scope exceeds that of the General Release and covers subject matters not dealt with by the General Release. (Id. 10-12.) Indeed, Medtech appears to be objecting to what it perceives as Magistrate Judge Smith’s recommendation that this Court conclude that the PIIA in its entirety was superseded by the General Release. The Court does not read the R & R quite as broadly as does Medtech, making certain aspects of Medtech’s objections irrelevant. In particular, the Court does not read the R & R as suggesting the PIIAs were superseded in their entirety by the General Releases. Instead, Magistrate Judge Smith recommended that this Court find that the confidentiality provisions in the PIIAs (SAC, Exs. C ¶0(1), D ¶ D(l)), were superseded by the confidentiality provisions in the General Releases (id., Exs. G ¶ 7, H ¶ 7). (R & R 810.) Though “[i]t is a well settled principle of contract law that a new agreement between the same parties on the same subject matter supercedes the old agreement,” Ottawa Office Integration, Inc. v. FTF Bus. Sys., 182 F.Supp.2d 215, 219 (S.D.N.Y.2001), “a subsequent agreement supersedes only those terms of the earlier contract that are of the same subject matter.” CreditSights, Inc. v. Ciasullo, No. 05-CV-9345, 2007 WL 943352, at *6 (S.D.N.Y. Mar. 29, 2007); see also Kreiss v. McCown De Leeuw & Co., 37 F.Supp.2d 294, 301 (S.D.N.Y.1999) (finding that provisions in new agreement superseded provisions in older agreement only to the extent that they covered the same subject matter where new agreement contained merger and integration clause providing: “This Agreement contains the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all prior arrangements or understandings ... with respect thereto.” (alterations and emphasis in original)). Therefore, as pointed out by Medtech, there are certain terms in the PIIA that are not covered in, and are therefore not superseded by, the General Release. With respect to the confidentiality provisions in particular, however, the Court is persuaded by Magistrate Judge Smith’s careful analysis and comparison of the two provisions, as well as by her ultimate conclusion that the terms cover the same subject matter — confidentiality owed to Medtech, both during and after Kaplan’s and Duane’s respective engagements with Medtech. Therefore, the Court finds, for reasons laid out by Magistrate Judge Smith, that the confidentiality provisions of the PIIAs are superseded by the confidentiality provisions of the General Releases. Because Medtech has alleged that Duane and Kaplan breached the confidentiality provisions of their PIIAs, those claims are dismissed. (SAC ¶¶ 232, 241.) See CreditSights, Inc., 2007 WL 943352, at *6 (stating “a plaintiff must identify what provisions of the contract were breached as a result of the acts at issue”). iii. Allegations of Breach Magistrate Judge Smith recommended that this Court conclude that Medtech has sufficiently alleged breaches of the following: (1) the NC/NS clause of the Consulting Agreement by the Duane Defendants; (2) the confidentiality provisions of the PIIA by C.D.S.; and (3) the confidentiality provisions of the General Releases by Kaplan and Duane. (R & R 811.) The Duane Defendants and Kaplan object to these recommendations, arguing that the Second Amended Complaint fails to adequately allege that they divulged Medtech’s trade secrets to DenTek. (Duane Defs. Obj. 13; Kaplan Obj. 14-15.) As already discussed in the trade secret misappropriation section above, the Court finds that Medtech has sufficiently alleged that Kaplan, Duane, and C.D.S. (through Duane) divulged Medtech’s trade secrets to DenTek. Therefore, as Magistrate Judge Smith recommended, this Court denies Duane’s Motion to Dismiss Medtech’s breach of contract claim premised on the General Release, C.D.S.’ Motion to Dismiss the breach of contract claim premised on the PIIA, and Kaplan’s Motion to Dismiss the breach of contract claim premised on the General Release. c. Civil Conspiracy Claims “To establish its claim of civil conspiracy, the [plaintiff] must demonstrate the primary tort, plus the following four elements: (1) an agreement between two or more parties; (2) an overt act in furtherance of the agreement; (3) the parties’ intentional participation in the furtherance of a plan or purpose; and (4) resulting damage or injury.” World Wrestling Fed’n Entm’t, Inc. v. Bozell 142 F.Supp.2d 514, 532 (S.D.N.Y.2001) In her R & R, Magistrate Judge Smith recommended that Medtech’s claim for civil conspiracy should be dismissed on the ground that Plaintiff had not sufficiently alleged the first element of the claim: “[t]here are no allegations in the complaint that the Defendants specifically agreed to use[] the trade secrets that Duane and Kaplan gleaned from them employment with Medtech in order to produce DenTek’s competing product.” (R & R 812.) Medtech objects to this recommendation, first, by identifying allegations that it contends sufficiently allege, under the liberal pleading standards against which they are to be considered, an agreement among Defendants to misappropriate Medtech’s trade secrets (Medtech Obj. 6 (citing SAC ¶¶ 120, 128, 130, 163, 270)), and second, and in the alternative, by arguing that “[t]he allegations in the SAC were made at a time when virtually no discovery had taken place, and thus any requirement that Medtech state with specificity the exact time, place, and manner of the agreement between DenTek, Duane, and Kaplan is unrealistic” (id. 7). The Court has thoroughly reviewed the allegations flagged by Medtech in its objections, and finds them too conelusory and lacking in factual detail to survive Defendants’ Motions to Dismiss the civil conspiracy claim. Though a claim for civil conspiracy is measured against the liberal pleading requirements of Federal Rule of Civil Procedure 8(a), and not the more rigorous requirements of Rule 9(b), merely conelusory allegations are insufficient. See Hecht v. Commerce Clearing House, Inc., 897 F.2d 21, 26 n. 4 (2d Cir.1990) (“[T]he complaint must allege some factual basis for a finding of a conscious agreement among the defendants.”); Grove Press, Inc. v. Angleton, 649 F.2d 121, 123 (2d Cir.1981) (“The damage for which recovery may be had in a civil action is not the conspiracy itself but the injury to the plaintiff produced by specific overt acts. Accordingly, a bare conclusory allegation of conspiracy does not state a cause of action.” (internal quotation marks and citations omitted)); Fierro v. Gallucci, No. 06-CV-5189, 2008 WL 2039545, at *16 (E.D.N.Y. May 12, 2008) (“[T]o survive a motion to dismiss, a complaint must contain more than general allegations in support of the conspiracy. Rather, it must allege the specific times, facts, and circumstances of the alleged conspiracy.” (internal quotation marks omitted)); Brownstone Inv. Group v. Levey, 468 F.Supp.2d 654, 661 (S.D.N.Y.2007) (same); see also Ciambriello v. County of Nassau, 292 F.3d 307, 325 (2d Cir.2002) (finding allegations of conspiracy to violate plaintiffs constitutional rights too conclusory to survive motion to dismiss because plaintiff did “not provide[] any details of time and place, and he has failed to specify in detail the factual basis necessary to enable [defendants] intelligently to prepare their defense” (internal quotation marks and citations omitted)). The only allegation that can be fairly read to allege an agreement among Defendants to misappropriate Medtech’s trade secrets reads as follows: “Upon information and belief, DenTek, Duane, CDS, and Kaplan conspired, agreed, and planned to use Medtech’s confidential and proprietary information____” (SAC ¶270). This Court, like Magistrate Judge Smith, finds that Medtech’s Second Amended Complaint merely concludes that an agreement existed without any factual basis to make the allegation plausible. See Twombly, 127 S.Ct. at 1968 (rejecting notion that “a wholly conclusory statement of claim [c]ould survive a motion to dismiss whenever the pleadings left open the possibility that a plaintiff might later establish some ‘set of [undisclosed] facts’ to support recovery”). Therefore, Medtech’s civil conspiracy claims are dismissed without prejudice. d. Tortious Interference Claims i. Tortious Interferences tvith Contractual Relations With respect to Medtech’s claims for tortious interference with contractual relations, Magistrate Judge Smith recommended that this Court grant both DenTek’s and Duane’s Motions to Dismiss. (R & R 814.) Medtech’s claim against DenTek is premised on DenTek’s alleged interference with the Consulting Agreement, the PIIAs, and the General Releases between Dental Concepts and Kaplan and Dental Concepts and Duane. With regard to Medtech’s claim against Duane, he is alleged to have tortiously interfered with the PIIA and General Release between Dental Concepts and Kaplan by inducing Kaplan to breach the confidentiality provisions contained therein. “Under New York law, the elements of tortious interference with contract are (1) the existence of a valid contract between the plaintiff and a third party; (2) the defendant’s knowledge of the contract; (3) the defendant’s intentional procurement of the third-party’s breach of the contract without justification; (4) actual breach of the contract; and (5) damages resulting therefrom.” Kirch v. Liberty Media Corp., 449 F.3d 388, 401-402 (2d Cir.2006) (citing Lama Holding Co. v. Smith Barney Inc., 88 N.Y.2d 413, 646 N.Y.S.2d 76, 668 N.E.2d 1370, 1375 (1996)) (internal quotation marks omitted). Medteeh has filed objections to Magistrate Judge Smith’s recommendation that this Court dismiss its tortious interference with contractual relations claims based on Medtech’s failure to adequately allege the second and third elements with respect to DenTek and the third element with respect to Duane. Medteeh argues that DenTek’s knowledge of the agreements is a question of fact that cannot be resolved on a motion to dismiss (Medteeh Obj. 2), that Magistrate Judge Smith applied an incorrect standard by insisting that Med-tech must allege that the tortious interference was accomplished by “wrongful means,” and that, in any case, the issue of whether the alleged interference was done without justification cannot be appropriately determined on a motion to dismiss (id. 4-5). Therefore, the Court has undertaken a de novo review of this portion of the R & R. With respect to the second element, “[a]lthough a defendant need not be aware of all the details of a contract, it must have actual knowledge of the specific contract.” LinkCo, Inc. v. Fujitsu Ltd., 230 F.Supp.2d 492, 495 (S.D.N.Y.2002) (internal quotation marks omitted). Medteeh alleges DenTek’s knowledge as follows: (1) “DenTek knew or should have known of the valid contracts between Duane and Dental Concepts/Medtech and Kaplan and Dental Concepts/Medtech” (SAC ¶ 258); and (2) “DenTek is a sophisticated entity well aware of the industry practice of securing confidentiality agreements, as evidenced by its own conduct with Duane, Kaplan and the Tufts Doctors” (id. ¶ 259). Even if the Court were inclined to accept Medtech’s wholly conclusory allegation that DenTek knew of the contracts at issue, see Kirch, 449 F.3d at 402 (finding plaintiffs allegation that defendants “were aware” of the contract at issue insufficient to plead defendant’s actual knowledge of the contract) — and assuming that this allegation is consistent with counsel’s Fed. R.Civ.P. 11 obligation that there be a good faith basis for the allegation — Medtech is not out of the woods. The Second Amended Complaint contains specific allegations that are hardly consistent with the conclusory claim that DenTek had actual knowledge of the contracts with which it allegedly interfered. For instance, Med-tech alleges that “DenTek did not ask to see any employment agreements with Dental Concepts,” and that “Duane allegedly failed to inform [the DenTek representative with whom he met] ... that he was bound by the terms of a non-competition covenant.” (SAC ¶¶ 13, 116.) From these allegations, it cannot be said that Plaintiff is claiming that DenTek saw the governing contracts and therefore was aware of the limitations they imposed on Duane and Kaplan. Given these allegations, the Court finds inadequate the general claim of DenTek’s knowledge of the contracts. See Elliot v. City of New York, No. 06-CV-296, 2008 WL 4178187, at *4 (S.D.N.Y. Sept. 8, 2008) (noting that an adequately stated claim “ ‘may be supported by showing any set of facts consistent with the allegations in the complaint’ ” (quoting Twombly, 127 S.Ct. at 1979)). Therefore, for these and the reasons set forth in the R & R, Medtech has failed to adequately allege the second element in its tortious interference with contractual relations claim against DenTek. With respect to the third element — the defendant’s intentional procurement of the third-party’s breach of the contract without justification — the Court finds Medtech’s allegations inadequate to survive DenTek and Duane’s Motions to Dismiss. Even accepting as true Medtech’s conclusory allegations that “DenTek procured Duane’s and Kaplan’s breaches of [the contracts at issue]” (SAC ¶ 260), and that “Duane procured Kaplan’s breach of [the General Release]” (id. ¶ 266), Medtech does not allege in the Second Amended Complaint that the alleged procurement by DenTek and Duane was done without justification. Where a plaintiff alleges interference with a valid, enforceable contract, as Medtech has here, there is legal authority establishing that it is not necessary to allege that the interference was malicious or done through wrongful means. See, e.g., Cerveceria Modelo, 2008 WL 1710910, at *4 (“[T]o state a claim for tortious interference with contract under New York law, [plaintiff] need not allege malice on the part of [defendants] or that [defendants] used wrongful means to procure the breach. [Plaintiff] need only allege facts that show that [defendants’] procurement of the breach was without justification.”); NBT Bancorp Inc. et al. v. Fleet/Norstar Fin. Group., 87 N.Y.2d 614, 641 N.Y.S.2d 581, 664 N.E.2d 492, 496 (1996); cf. Carvel Corp. v. Noonan, 3 N.Y.3d 182, 190, 785 N.Y.S.2d 359, 818 N.E.2d 1100 (N.Y.2004) (“[W]here a suit is based on interference with a nonbinding relationship, the plaintiff must show that defendant’s conduct was not ‘lawful’ but ‘more culpable.’ ”). Because Medtech has not pled that the alleged interferences were unjustified, the Court dismisses Medtech’s tortious interference with contractual relations claims against DenTek and Duane, again, without prejudice. ii. Tortious Interference with, Advantageous Business Relationship/Economic Advantage Magistrate Judge Smith also has recommended that this Court grant DenTek’s Motion to Dismiss Plaintiffs claim based on tortious interference with advantageous business relationship/economic advantage. Medtech explicitly does not object to this recommendation. (Medtech Obj. 1 n. 2.) Thus, the Court, finding no clear error in Magistrate Judge Smith’s analysis, adopts her recommendation and grants DenTek’s Motion to Dismiss this claim. e. Unfair Competition and Unjust Enrichment Claims Finally, Magistrate Judge Smith recommended that this Court conclude that Medtech’s allegations “sufficiently support Medtech’s theory that its unjust enrichment and unfair competition claims are based on an ‘additional element’ of breach of duty or trust and therefore are sufficient to survive DenTek’s motion to dismiss on the basis of preemption.” (R & R 818.) This recommendation was not objected to by any party, so the Court reviewed it only for clear error. Having found none, the Court adopts Magistrate Judge Smith’s recommendation that DenTek’s Motion to Dismiss Medtech’s claims for unfair competition and unjust enrichment be denied for the reasons thoroughly set forth in the R & R. III. Conclusion For the reasons stated herein, Magistrate Judge Smith’s R & R dated June 2, 2008, is adopted to the extent that it is consistent with this Opinion. Defendants’ Motions to Dismiss are granted in part and denied in part, with the following claims having been dismissed without prejudice: (1) breach of the PIIA against Duane (Count VII); (2) breach of the PIIA against Kaplan (Count VIII); (3) tortious interference with contractual relations against DenTek (Count X); (4) tortious interference with contractual relations against Duane (Count XI); and (5) tortious interference with advantageous business relationship/economic advantage against all Defendants (Count XIV). Medtech’s Motions to Strike the Motions to Dismiss filed by C.D.S. and DenTek are denied. The Clerk of Court is respectfully directed to terminate the pending Motions (Dkt.Nos.104,109,116, 121,137). SO ORDERED. REPORT & RECOMMENDATION LISA MARGARET SMITH, United States Magistrate Judge. TO: THE HONORABLE KENNETH M. KARAS, UNITED STATES DISTRICT JUDGE Plaintiff Medtech Products, Inc. (“Med-tech”) brings this consolidated action pursuant to 35 U.S.C. § 271, 15 U.S.C. §§ 1116-1118, 1125(a), 17 U.S.C. § 101. et seq., New York General Business Law §§ 349(h) and 360-O, and New York common law against DenTek Oral Care, Inc. (“DenTek”), Kelly M. Kaplan (“Kaplan”), Ray Duane (“Duane”), C.D.S. Associates, Inc. (“CDS”) (collectively, “Defendants”), and Power Products, Inc (“Power Products”). In its Amended Complaint (“Amended Complaint”), Plaintiff claims that Defendants DenTek, Kaplan, Duane, and CDS engaged in unfair competition, breach of contract, tortious interference with contractual relations, civil conspiracy, trade secret misappropriation, tortious interference with an advantageous business relationship, and patent, trademark, and copyright infringement. This case was referred to me for all purposes on April 24, 2007. Docket entry 3. On November 21, 2007, Kaplan and DenTek separately filed motions to dismiss the Amended Complaint under Federal Rule of Civil Procedure (“FRCP”) 12(b)(6). Docket entries 104-13. DenTek also filed a motion, in the alternative, to compel Medtech to disclose with particularity the alleged misappropriated trade secrets. Docket entry 109. Duane, acting pro se, attempted to file a motion to dismiss on his own behalf and on behalf of CDS, Duane’s consulting company, on November 21, 2007. Subsequently, however, Duane and CDS obtained counsel and, on March 6, 2008, submitted a new motion to dismiss, withdrawing the prior motion to dismiss. Docket entries 137-39. In conjunction with their motions, Kaplan, Duane, and CDS seek attorneys’ fees. Medtech opposed the motions to dismiss and also moved the Court to strike DenTek’s memorandum of law in support of its motion to dismiss. Docket entries 116-18, 145. The following Report and Recommendation addresses each of the motions. I. BACKGROUND A. Summary of Relevant Facts Medtech markets, distributes, and sells an over-the-counter (“OTC”) dental device called The Doctor’s ® Nightguard tm (“the Nightguard”) throughout the United States. Amended Complaint at ¶ 1. The device is designed to protect the teeth and jaw from the detrimental affects of grinding, or bruxing, and clenching teeth. Id. at ¶ 2. Although Medtech’s predecessor-in-interest, Dental Concepts LLC (“Dental Concepts”), had been selling the Night-guard since 1997, Dental Concepts obtained U.S. Patent No. 6, 830, 051 (“the 051 Patent”) entitled “Interocclusal Applianee,” in 2004 to cover a new version of the Nightguard and its improved technology. Id. at ¶ 47, 58-59. Medtech alleges that in mid-March 2007, DenTek brought an OTC dental device to the market, called the DenTek Night-guard, which infringes on its 051 Patent. Id. at ¶¶ 6, 193. According to Medtech, DenTek was able to manufacture the allegedly infringing product quickly because it recruited Kaplan and Duane, Dental Concepts’ Vice Presidents of Marketing and Sales, respectively, and Kaplan and Duane divulged confidential and proprietary information and material to DenTek. Id. at ¶¶ 7,129,163. Specifically, Medtech alleges that its predecessor-in-interest, Dental Concepts, hired Kaplan, Duane, and CDS, in September 1999; that prior to leaving Dental Concepts, Kaplan and Duane were involved in and financially interested in growing Dental Concepts so that it could eventually be sold; and that because of Kaplan and Duane’s executive positions at Dental Concepts, Kaplan and Duane both had access to confidential and proprietary information and material relating to the Nightguard. Id. at ¶¶ 31-41. In particular, Medtech alleges that through their involvement in developing and marketing Dental Concepts’ products, they learned confidential information and material about Medtech’s marketing strategy, suppliers, designers, consultants, and product formulation and production sources. Id. at ¶ 41. Medtech further alleges that when they were hired, Duane and CDS signed a Consulting Agreement with Dental Concepts (“Consulting Agreement”) that included a twenty-four month non-compete provision and a non-solicitation provision. Id. at ¶¶ 31-34. In addition, Plaintiff alleges that Duane, on his own behalf and on behalf of CDS, and Kaplan, signed Proprietary Information and Inventions Agreements which required them to keep Medtech’s proprietary information secret. Id. at ¶¶ 42-46. Furthermore, Medtech alleges that in November 2005, when Dental Concepts was eventually sold to a company called Prestige (which subsequently integrated Dental Concepts into Medtech), Duane and Kaplan each executed a General Release in which both agreed to keep secret any confidential and proprietary information learned while they were employed with Dental Concepts. Id. at ¶¶ 65-81. Medtech alleges that Duane and Kaplan violated these agreements by divulging Dental Concepts’ trade secrets. Id. at ¶¶ 123-24, 128-30. Specifically, Medtech alleges that Duane, through CDS, began working with DenTek to develop a product that would compete with the Nightguard in August 2006, prior to the completion of the twenty-four month non-compete period; that Duane contacted Medtech employees seeking confidential information; that Duane recruited Kaplan and attempted to recruit other Medtech employees; that Duane and Kaplan contacted and developed relationships with Medtech’s suppliers, consultants, and legal counsel; and that Duane and Kaplan disclosed Med-tech’s confidential information and material to help DenTek create a competing Nightguard. Id. at ¶¶ 120-162, Exhibit M. II. DISCUSSION A. Standard of Review for 12(b)(6) Motions to Dismiss Under Rule 8(a)(2) of the FRCP, a plaintiff must only plead “a short and plain statement of the claim showing that [he or she] is entitled to relief’ in order to give the defendant “fair notice of what the ... claim is and the grounds upon which it rests.” Fed.R.Civ.P. 8(a)(2). In evaluating whether a plaintiff has met this standard pursuant to a motion to dismiss under 12(b)(6), the court must determine whether the plaintiff has pleaded “factual allegations [sufficient to] raise a right to relief above a speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007) (internal citations omitted). Furthermore, when considering a motion to dismiss under Rule 12(b)(6) for failure to state a claim upon which relief can be granted, a district court must accept the allegations in the complaint as true and draw all reasonable inferences in the plaintiffs favor. McCarthy, 482 F.3d at 191. B. Motion to Strike DenTek’s Memorandum of Law In response to DenTek’s motion to dismiss, Medtech filed a motion to strike DenTek’s motion and memorandum in support without leave to refile arguing that the documents attached to DenTek’s motion and referenced throughout its memorandum in support were beyond the scope of a 12(b)(6) motion. See generally Med-tech Memorandum in Support of Motion to Strike. Indeed, in deciding a motion to dismiss under Rule 12(b)(6), the court’s review is “limited to the facts asserted within the four corners of the complaint, the documents attached to the complaint as exhibits, and any documents incorporated in the complaint by reference.” McCarthy, 482 F.3d at 191. The court may also look to matters of which judicial notice may be taken, or to documents that the plaintiff has possession or knowledge of or that plaintiff relied upon in drafting the complaint. See Global Network Commc’ns v. City of New York, 458 F.3d 150, 156-57 (2d Cir.2006); Henschke v. New York Hosp.-Cornell Med. Ctr., 821 F.Supp. 166, 169 (S.D.N.Y.1993). When matters outside the pleading are presented to the court on a Rule 12(b)(6) motion to dismiss, and do not fall into one of the categories mentioned above, the court may either exclude such matters, or convert the motion to a motion for summary judgment under Rule 56 of the FRCP. Friedl v. City of New York, 210 F.3d 79, 83 (2d Cir.2000). If the court decides to convert the motion, the court must give all parties “reasonable opportunity to present all material made pertinent to such a motion by Rule 56.’ ” Global Network, 458 F.3d at 154 (quoting FRCP 12(b)). DenTek offers the Declaration of Brad Conley, a DenTek employee; portions of a deposition of Duane and Noshir Mehta, one Medtech’s alleged consultants (“the Tufts Doctors”); and printouts from various websites in support of its motion to dismiss. Medtech argues that the Court may not consider these exhibits in determining the motions to dismiss and that because the exhibits are discussed in DenTek’s memorandum in support, both the motion and the memorandum in support should be stricken without leave to refile. Although I agree with Medtech that the exhibits offered in support of DenTek’s motion should not properly be considered on a motion to dismiss under Rule 12(b)(6), I conclude, and respectfully recommend that Your Honor should conclude, that such drastic measures as those recommended by Medtech need not be taken. I will simply exclude DenTek’s improper exhibits for the purposes of this motion. Accordingly, I conclude, and respectfully recommend that Your Honor should conclude, that Medtech’s motion to strike DenTek’s motion and Memorandum of Law should be denied. I also conclude, and respectfully recommend that Your Honor should conclude, that because discovery is still ongoing in this case, the motions should not be converted to motions for summary judgment. C. Kaplan, DenTek, Duane, and CDS Motions to Dismiss In the Amended Complaint, Medtech alleges the following causes of action against Kaplan: breach of contract, civil conspiracy, trade secret misappropriation, and tortious interference with advantageous business relationship/economic advantage. Amended Complaint at Counts VIH, IX, XII, XIII, and XIV. Medtech brings the following claims against Duane: breach of contract, tortious interference with contractual relations, civil conspiracy, trade secret misappropriation, and tortious interference with advantageous business relationship/economic advantage. Amended Complaint at Counts VII, IX, XI, XII, XIII, and XIV. Medtech brings the following claims against CDS: breach of contract, civil conspiracy, trade secret misappropriation, and tortious interference with advantageous business relationship/economic advantage. Amended Complaint at Counts VII, XII, XIII, and XIV. Kaplan, Duane, and CDS move the Court to dismiss all of the claims against them, arguing that the Amended Complaint fails to state a claim as to each cause of action against them. Medtech alleges the following claims against DenTek: patent infringement, violation of the Lanham Act, copyright infringement, unfair competition, unjust enrichment, violation of section 349(H) of New York Act for Consumer Protection From Deceptive Acts and Practices, tortious interference with contractual relations, civil conspiracy, trade secret misappropriation, and tortious interference with advantageous business relationship/economic advantage. Amended Complaint at Counts I, II, III, IV, V, VI, X, XI, XII. DenTek moves the Court to dismiss Med-tech’s claims of unfair competition, unjust enrichment, tortious interference with contractual relations, civil conspiracy, trade secret misappropriation, and tortious interference with advantageous business relationship/economic advantage. 1. Medtech’s Trade Secret Misappropriation Claims Against Kaplan, Duane, CDS, and DenTek In order to state a claim for trade secret misappropriation under New York law, a plaintiff must establish the following elements: “(1) that it possessed a trade secret, and (2) that the defendants used that trade secret in breach of an agreement, confidential relationship or duty, or as a result of discovery by improper means.” N. Atl. Instruments, Inc. v. Haber, 188 F.3d 38, 43-44 (2d Cir.1999). “A trade secret may consist of any formula, pattern, device or compilation of information which is used in one’s business, and which gives [the owner] the opportunity to obtain an advantage over competitors who do not know or use it.” Restatement of Torts § 757, comment b (1930) (adopted as the definition of a trade secret by the Second Circuit in Softel, Inc. v. Dragon Med. & Scientific Communications, Inc., 118 F.3d 955, 968 (2d Cir.1997)). The following factors may be used to determine whether a particular piece of information is a trade secret: (1) the extent to which the information is known outside of the business; (2) the extent to which it is known by employees and others involved in the business; (3) the extent of measures taken by the business to guard the secrecy of the information; (4) the value of the information to the business and its competitors; (5) the amount of effort or money expended by the business in developing the information; and (6) the ease or difficulty with which the information could be properly acquired or duplicated by others. N. Atl. Instruments, 188 F.3d at 44 (internal citations omitted). Of course, the most important consideration in determining whether a piece of information qualifies as a trade secret is whether the information was actually a secret. Lehman v. Dow Jones & Co., 783 F.2d 285, 298 (2d Cir.1986). Although certain aspects of a product that would be easily ascertainable upon inspection once the product is placed on the market, such as the design of a product, have been found to not constitute trade secrets, see LinkCo, Inc. v. Fujitsu, Ltd., 230 F.Supp.2d 492, 498-99 (S.D.N.Y.2002), and marketing concepts, new product ideas, and business possibilities and goals have likewise been found not to constitute trade secrets, id. at 499-500, lists of suppliers, Howard Berger Co. v. Ye, 272 A.D.2d 445, 708 N.Y.S.2d 310 (2d Dept.2000); strategic information regarding price, distribution, and marketing; brand strategies, Estee Lauder Cos. v. Batra, 430 F.Supp.2d 158, 175-76 (S.D.N.Y.2006); and confidential business relationships, A & G Healthplans, Inc. v. Nat. Network Servs., Inc., No. 99 CV 12153(GBD), 2003 WL 1212933, *3 (S.D.N.Y. Mar. 14, 2003), have been found to constitute trade secrets. In addition, “[i]t is well-settled that ‘a trade secret can exist in a combination of characteristics and components, each of which, by itself, is in the public domain, but the unified process and operation of which, in unique combination, affords a competitive advantage and is a protectable secret.’ ” Integrated Cash Mgmt. Servs., Inc. v. Digital Transactions, Inc., 732 F.Supp. 370, 376 (S.D.N.Y.1989) (quoting Imperial Chem. Indus. Ltd. v. Nat. Distillers & Chem. Corp., 342 F.2d 737, 742 (2d Cir.1965)), aff'd, 920 F.2d 171 (2d Cir.1990). For example, in Head Ski Company, Inc. v. Kam Ski Company, Inc., 158 F.Supp. 919 (D.C.Md.1958), which was cited by the Second Circuit in Imperial Chemical in support of the proposition that it is well-settled that “a trade secret can exits in a combination of characteristics and components[,]” 342 F.2d at 742, the plaintiff alleged that its former employees started their own company and produced a competing metal ski using the knowledge they gained by working for the plaintiff, the maker of the first metal ski. Head Ski, 158 F.Supp. at 920. The defendants argued that all of the materials, processes, and methods they used were well known to aircraft mechanics and engineers and therefore could not be the plaintiffs trade secrets. Id. at 923. In finding that the materials, methods, and processes used by the plaintiff constituted trade secrets, the court stated, ‘[t]he mere fact that the means by which a discovery is made are obvious, that experimentation