Full opinion text
MEMORANDUM OPINION REGGIE B. WALTON, District Judge. The plaintiff, National Railroad Passenger Corporation (“Amtrak”), filed this action on July 16, 2007, against Veolia Transportation Services, Inc. and Veolia Transportation, Inc. (collectively “Veolia”), asserting, in Count I, that Veolia aided and abetted the breach by several former Amtrak employees of the fiduciary duties they owed to Amtrak and, in Count II, that Veolia tortiously interfered with Amtrak’s prospective economic advantage with regard to a public transportation operation in Southern Florida. See generally Complaint (“Compl.”). Currently before the Court is the plaintiffs motion for partial summary judgment on Count I of its Complaint and the defendants’ cross-motion for summary judgment on both Counts I and II of the Complaint. Upon consideration of the parties’ submissions and for the reasons set forth below, both parties’ motions for summary judgment must be denied. I. Background The factual background giving rise to the allegations in the plaintiffs Complaint was set forth in this Court’s earlier opinion denying the defendants’ motion to dismiss. See Nat’l R.R. Passenger Corp. v. Veolia Transp. Servs., Inc., 592 F.Supp.2d 86 (D.D.C.2009) (Walton, J.) (“Amtrak I”). While that background was drawn solely from the allegations made in the plaintiffs Complaint, the following is based upon facts that are either undisputed or are matters of public record, except where otherwise noted. Veolia and Amtrak are both “providers of transportation services, including operations services for commuter rail systems.” Compl. ¶ 6. Both have “the infrastructure, personnel, and institutional experience necessary to operate major urban commuter rail services.” Plaintiffs Statement of Material Facts Not in Dispute (“Pl.’s Facts”) ¶ 6; Defendants’ Local Rule 7(h) Counterstatement of Facts in Opposition to Plaintiffs Motion for Partial Summary Judgment (“Defs.’ Counter Facts”) § I ¶ 6. The controversy in this case arises from the two companies’ participation in a competitive bidding process for a contract to provide commuter rail operation service for the South Florida Regional Transportation Authority (the “SFRTA”) for “seven years with one three-year option period.” Compl. ¶ 11; Plaintiffs Motion for Partial Summary Judgment on Count I (“Pl.’s Mot.”), Declaration of Gary A. Orseck (“Orseck Deck”), Exhibit (“Ex.”) 8 (RFP No. 06-112) at AMTH 003757-3761. Amtrak alleges that Veolia aided and abetted three former Amtrak employees in breaching their fiduciary duties to Amtrak in connection with Veolia’s efforts to acquire the SFRTA contract. Compl. ¶¶ 53-59. Amtrak also contends that Veolia interfered with its prospective economic advantage by soliciting the employment of those former Amtrak employees and causing two of them to refuse to be listed as part of Amtrak’s management team in its bid to acquire the SFRTA contract. Id. ¶¶ 60-66. A. The Request for Proposals The SFRTA is a public transit agency that receives public funds and operates the commuter rail service known as the TriRail in Miami-Dade, Broward, and Palm Beach counties in South Florida. Defendants’ Local Rule 7(h) Statement of Material Facts as to Which There Is No Genuine Issue to be Litigated in Support of Defendants’ Motion for Summary Judgment (“Defs.’ Facts”) ¶ 1; Plaintiffs Responses to Statements of Material Facts by Defendants Veolia Transportation Services, Inc. and Veolia Transportation, Inc. and Plaintiffs Supplemental Statements of Facts Precluding Summary Judgment (“Pl.’s Supp. Facts”) § I ¶ 1. In the latter part of 2006, the SFRTA issued a request for bid proposals (“RFP” or “Request for Proposals”), inviting service providers to submit bids to operate and maintain the Tri-Rail commuter system. Defs.’ Facts ¶ 4; Pl.’s Supp. Facts § I ¶ 4. Eight companies purchased the SFRTA’s Operations Request for Proposal information, Defs.’ Counter Facts § I ¶ 19, and representatives from four of those companies, Herzog Transit Services, Inc. (“Herzog”), Veolia, Amtrak, and the Washington Group International attended a Tri-Rail pre-proposal conference on October 18, 2006, id.; Pl’s Facts ¶ 19. Proposals for the Tri-Rail contract were due on or before January 11, 2007. Compl. ¶ 12. According to the RFP, the requirements needed for a successful bid included, inter alia, the composition of a “Key Management Team” that would be responsible for operating and managing the Tri-Rail system. Id. ¶ 13. Specifically, “[t]he Operations [Request for Proposals] required that each bidder propose a general manager and an on-site Key Management Team[] comprised of members responsible for the following functions: Transportation, Safety, Human Resources/Labor Relations, and Communications (Operations Center).” Defs.’ Facts ¶ 23; Pl.’s Supp. Facts § I ¶ 23. “The Operations [Request for Proposals] set forth strict requirements concerning the qualifications of the Key Management Team [M]embers,” which required each team member to “possess a minimum of [three] years of recent experience ... as the operator of a passenger railroad service.” Compl. ¶ 14 (internal quotation marks omitted). Further, it required that the Key Management Team as a whole “demonstrate relevant experience with the key railroad functions,” including “[t]rain operations in a multiple user environment^] ... [c]rew management; ... [customer service[;] ... [r]ailroad employee training and certification; [r]ail operations interface management with maintenance and new construction; [financial management and reporting of rail operations^] ... [and r]ailroad safety program management.” Id. Amtrak and Veolia were the only two companies that submitted proposals. Defs.’ Facts ¶ 200; Pl.’s Supp. Facts § I ¶ 200. B. Veolia’s Proposed Key Management Team On Its Tri-Rail Bid Veolia began recruiting for its Tri-Ráil general manager position in early 2006. Defs.’ Facts ¶ 36. Recruiting a general manager was “[o]ne of Veolia’s first priorities in pursuing the Tri-Rail” contract because the person selected could then “help manage the proposal effort and ... manage the contract if it was awarded to Veolia.” Id. ¶ 35. Among the candidates Veolia considered for the position was Joseph Yannuzzi, an Amtrak employee. Id. ¶ 38. Several months before the proposal due date, Veolia contacted Mr. Yannuzzi about potentially working for Veolia, but Veolia and Amtrak dispute whether Mr. Yannuzzi was aware that Veolia’s potential offer would be contingent on the success of its bid for the Tri-Rail Operations contract. Id. ¶¶ 90-92; Pl’s Supp. Facts § T ¶¶ 90-92. Following Veolia’s “entreaty,” Mr. Yannuzzi informed Gilbert Mallery, Amtrak’s Vice President of Strategic Planning and Contract Administration, regarding the contact he had with Veolia. Defs.’ Facts ¶ 92. Ultimately, on June 15, 2006, Veolia hired Sidney Birckett for the position of general manager, id. ¶ 41, who had been an at-will employee with Amtrak, id. ¶ 37. His selection for the position with Veolia was not contingent upon it securing the Tri-Rail Operations contract. Id. ¶¶ 37, 41; Pl.’s Facts ¶ 31. As general manager, Mr. Birckett worked with Neil Shah, Veolia’s Manager of Rail Development, John Kerins, Veolia’s Vice President for Rail Development, and Veolia’s Human Resources Department to identify and recruit candidates for the other members of Veolia’s Key Management Team. Defs.’ Facts ¶¶ 42, 44; Pl.’s Supp. Facts § I ¶ 42. For its Transportation position, Veolia considered James Turngren and Victor Salemme, both Amtrak employees, as well as Marcus Moore, an independent consultant, and Deborah Wetter, a Veolia employee. Defs.’ Facts ¶ 45; Pl.’s Supp. Facts § I ¶ 45. Veolia ultimately extended a contingent offer of employment to Mr. Salemme, who accepted the offer on November 3, 2006. Defs.’ Facts ¶¶ 45, 56; Pl.’s Supp. Facts § I ¶ 45, 56. Although, the offer was contingent upon Veolia being awarded the Tri-Rail Operations Contract, Mr. Salemme permitted Veolia to list him and his résumé on its bid. Defs.’ Facts ¶ 56. At the time of the offer, Mr. Salemme was the Assistant Superintendent for Amtrak’s Maine Passenger Service, and he had previously been recognized by Amtrak for his exceptional service. Id. ¶¶ 49, 52; Pl.’s Supp. Facts § I ¶¶ 49, 52. For its Safety position, Veolia considered Amtrak employees Doug Stencil and Jewel Picket, along with James Waterman, a Veolia employee. Defs.’ Facts ¶ 59. Veolia interviewed Mr. Stencil, a Senior Analyst in the Operation Practices Section, id. ¶¶ 60, 63; Pl.’s Mot., Orseck Deck, Ex. 33 (May 7, 2008 Deposition Transcript of Douglas Stencil) (“Stencil Dep.”) at 44:11-19, who had an exceptional record as an Amtrak employee, see Defs.’ Facts ¶ 65 (noting that he had “never been disciplined or reprimanded”). On October 31, 2006, Veolia extended Mr. Stencil an offer of employment contingent on it being awarded the Tri-Rail Operations contract, which Mr. Stencil accepted on November 3rd of the same year. Id. ¶ 68. Veolia’s offer to Mr. Stencil was identical in nature to the offer accepted by Mr. Salemme. Id. ¶¶ 56, 68. For its Communications position, Veolia considered Amtrak employee Gary Mauck, James Tylick of Veolia, and Mr. Moore, who also had been considered for the Transportation position. Id. ¶ 71. Veolia first heard of Mr. Mauck’s potential availability from Tom Kirk, an Amtrak Assistant Superintendent in Florida, who said that Mr. Mauck was planning to retire from his position with Amtrak. Defs.’ Facts ¶ 76; PL’s Supp. Facts § I ¶ 76. Mr. Moore had been Veolia’s first choice for the position; however, after learning that Mr. Moore would be unavailable for the initial proposal deadline, Defs.’ Facts ¶ 72, Veolia “called Mr. Mauck and asked him if he would be interested in the potential Communications Manager position with Veolia for the Tri-Rail Operations [C]ontract,” id. ¶ 77. Mr. Mauck submitted his résumé to Veolia for the position on November 8, 2006, id. ¶ 78, and within a few days he was extended a contingent offer similar to the terms offered to Mr. Salemme and Mr. Stencil, which he accepted, id. ¶ 83. At that time, Mr. Mauck was the District Manager for Amtrak in New Mexico and had an exceptional employment record. Id. ¶¶ 73, 81. Finally, Veolia filled the Human Resources and Labor Relations position with a contractor employed by CSX Transportation, Inc., proposing the identical contingent offer that was made to the other potential members on the Key Management Team. Id. ¶¶ 87-89. Veolia submitted its proposal to the SFRTA on January 11, 2007, with a price proposal of $97,155,817. Id. ¶¶ 155-56. C. Amtrak’s Tri-Rail Proposal On November 2, 2006, Amtrak posted openings on its public website for its' Key Management Team positions for the TriRail contract, and stated that it would accept applications for the positions from both external and internal candidates. Id. ¶¶ 110, 112; Pl.’s Supp. Facts § I ¶¶ 110, 112. Ultimately, Amtrak selected three individuals for its Key Management Team from existing Amtrak employees, Defs.’ Facts ¶¶ 113, 159 (Joe Yannuzzi as General Manager, Lou Peseevie as Assistant Superintendent of Transportation, and Doug Stencil as Principal, Safety/Training), along with Guy Whitney, a Herzog employee to whom Amtrak extended a contingent offer as its choice for the Communications position. Id. ¶¶ 113, 133, 134; Pl.’s Supp. Facts § I ¶¶ 113, 133, 134. Angel Torress, who did not possess the level of railway experience required by the Operations Request for Proposals, nonetheless was selected by Amtrak for the Human Resources and Labor Relations position. Defendants’ Local Rule 7(h) Reply Statement of Material Facts in Further Support of Defendants’ Motion for Summary Judgment (“Defs.’ Reply Facts”) § III ¶¶ 41-44. Amtrak identified Mr. Stencil as the person who would occupy the Safety position, Defs.’ Facts ¶¶ 125-26; Pl.’s Supp. Facts § I ¶¶ 125-26, and he signed the Key Employee Certification submitted with Amtrak’s December 21, 2006 bid, but the parties dispute whether Mr. Stencil and Amtrak ever agreed to do more than merely permit his name and résumé to be submitted with the bid, Defs.’ Facts ¶¶ 129, 130; Pl.’s Supp. Facts § I ¶ 129. Finally, Amtrak asked Mr. Salemme about his interest in the Transportation position, but Mr. Salemme refused to be considered for that position, Pl.’s Facts ¶ 57; however, the parties disagree on whether he rejected Amtrak’s overtures because he “was involved with [Veolia] already,” id., or for other reasons, Defs.’ Facts ¶ 119. Ultimately, Amtrak selected Lou Peseevie for the Transportation position. Pl.’s Supp. Facts § I ¶¶ 118, 121. Amtrak also assembled a team to prepare its proposal for the Tri-Rail contract. Defs.’ Facts ¶ 157. In preparing Amtrak’s bid, the team considered various factors affecting price, including statutory requirements, labor costs, overhead rates, potential liabilities, and management fees. Id. ¶¶ 161-192. Amtrak had particular “concernís] that [its] total cost package was already higher than [its] competitors and that increasing the management fee would only further increase Amtrak’s costs.” Id. ¶ 189; Pl.’s Supp. Facts § I ¶ 189. Despite these concerns, Amtrak’s team received final approval for its proposal from senior Amtrak management officials sometime between late December 2006 and early January 2007. Defs.’ Facts ¶¶ 193, 195; Pl.’s Supp. Facts § I ¶¶ 193, 195. Consequently, Amtrak submitted its proposal to the SFRTA on January 4, 2007, with a price proposal of $162,639,724. Defs.’ Facts ¶¶ 197, 198; Pl.’s Supp. Facts § I ¶¶ 197, 198. D. The SFRTA Awards the Contract to Veolia Upon receiving the two bids for the TriRail contract, a SFRTA evaluation committee assigned numerical scores to each bid in four categories for purposes of determining which bid to select. Compl. ¶¶ 43-47; Pl.’s Mot., Orseck Deck, Ex. 13 (Evaluation Memo). Those four categories and the scores assigned to each category were the following: the price of the bid (which accounted for 15 points of the final score), the technical approach of the bid (worth 25 points of the final score), the operating plans (worth 25 points of the final score), and the qualifications and experience of the Key Management Team (worth 35 points of the final score). See Memorandum of Points and Authorities in Support of Defendants’ Motion for Summary Judgment (“Defs.’ Mem.”), Declaration of T. Stewart Rauch (“Rauch Deck”), Ex. 1 (Operations RFP) at AMTH00410102, AMTH004169-70. In reviewing the bids, the SFRTA retained the right to reject both proposals if, for example, neither proposal was sufficiently responsive to the SFRTA’s requirements. See Pl.’s Mot., Orseck Deck, Ex. 15 (May 27, 2008 Deposition Transcript of Bonnie Arnold) (“Arnold Dep.”) at 26:2-30:25. Excluding the score awarded to the price component, Veolia’s bid received a total score of 70 points, while Amtrak’s bid received a score of 62.3 points. Defs.’ Mem., Rauch Deck, Ex. 62 (SFRTA Evaluation Committee Rankings) at AMTH002916. As to the price component of its equation, the SFRTA adopted a policy of not awarding any points to bids that were priced more than 15 points higher than the lowest price proposal, id., Rauch Decl., Ex. 1 (Operations RFP) at AMTH004170, and because Veolia had underbid Amtrak by 66%, the SFRTA awarded Veolia 15 points, while Amtrak received a score of zero, id., Rauch Deck, Ex. 62 (SFRTA Evaluation Committee Rankings) at AMTH002916. Amtrak’s and Veolia’s scores were nearly identical in the qualifications and experience category, with Veolia receiving 28.0 points and Amtrak receiving 27.3 points for the composition of their respective Key Management Teams. Id.; id., Affidavit of Joseph Giulietti (“Giulietti Aff.”) ¶ 7. The scores in this category were based on the individual reviewers’ assessments of each Key Management Team based on criteria identified in the SFRTA’s Request for Proposals. See id., Rauch Decl., Ex. 1 (Operations RFP) at AMTH004169-70. Accordingly, the SFRTA’s Evaluation Committee awarded Veolia’s proposal a total score of 85 points, and Amtrak’s proposal received a total score of 62.8. Defs.’ Facts ¶ 212; Pl.’s Supp. Facts ¶ 212. As a result of this large disparity, the SFRTA selection committee voted unanimously to award Veolia the Operations contract. Defs.’ Mem., Rauch Decl., Ex. 61 (SFRTA Recommendation Memo) at 2; see id., Giulietti Aff. ¶ 7. On January 24, 2007, Amtrak was notified by the SFRTA that it had not been awarded the Tri-Rail contract. Id., Rauch Deck, Ex. 68 (Notice of Intent to Award for RFP 06-112). As a result of not being selected, Amtrak filed a notice of intent to file a bid protest and requested copies of Veolia’s proposal, Defs.’ Mem., Rauch Deck, Ex. 71 (January 25, 2007 Letter from Thomas Moritz of Amtrak to Christopher C. Bross of SFRTA), which it received on January 26, 2007, Compl. ¶ 52. Receipt of Veolia’s proposal provided Amtrak access, to information not only about Veolia’s price proposal, but also about the fact that Mauck, Salemme, and Stencil had appeared on Veolia’s bid as members of its proposed Key Management Team. Id. ¶¶ 51-52. On February 8 and 9, 2007, Amtrak informed Salemme and Mauck that they had violated its conflict-of-interest policy by permitting their names to be associated with Veolia’s bid, and that they had to resign from their positions with Amtrak or they would be involuntarily terminated. Pl.’s Facts ¶¶ 95, 99; Defs.’ Facts ¶¶ 228, 233. Both opted to resign. Defs.’ Facts ¶¶ 228, 233; Pl.’s Mot., Orseck Decl., Ex. 32 (May 8, 2008 Deposition Transcript of Victor Salemme) (“Salemme Dep.”) at 36:18-43:14; id., Orseck Decl., Ex. 31 (May 8, 2008 Deposition Transcript of Gary Mauck) (“Mauck Dep.”) at 85:4-14. In addition, Amtrak terminated Mr. Stencil’s employment based on its conflict-of-interest policy. Defs.’ Facts ¶¶ 231-32. On February 12, 2007, Salemme, Stencil, and Mauck received permanent offers from Veolia. See Defs.’ Mem., Rauch Deck, Ex. 75 (Offer letter from John Kerins to Mr. Salemme); id., Rauch Deck, Ex. 76 (Offer letter from Mr. Kerins to Mr. Stencil); id., Affidavit of Gary F. Mauck (“Mauck Aff.”), Ex. C (Offer letter from Mr. Kerins to Mr. Mauck). All three commenced their employment with Veolia shortly thereafter and are currently employed by Veolia on the SFRTA Tri-Rail project. See Pl.’s Mot., Orseck Decl., Ex. 31 (Mauck Dep.) at 21:14-22:17; id., Orseck Decl., Ex. 32 (Salemme Dep.) at 43:15-44:9; id., Orseck Decl., Ex. 33 (Stencil Dep.) at 9:11-22. Salemme, Stencil, and Mauck had been at-will Amtrak employees, Defs.’ Facts ¶¶ 50, 64, 79; Pl.’s Supp. Facts § I ¶¶ 50, 64, 79, and none of them had signed documents barring them from competing with Amtrak after their employment with Amtrak terminated, Defs.’ Facts ¶¶ 50, 64, 80; Pl.’s Supp. Facts § I ¶¶50, 64, 80. The parties disagree on whether any of the three Amtrak employees knew that Amtrak was seeking to acquire the Tri-Rail contract before signing contingent offers with Veolia. Defs.’ Facts ¶¶ 54, 70, 85; Pl.’s Supp. Facts § I ¶¶ 54, 70, 85. It is also disputed whether Veolia asked the employees “not to sign up with Amtrak” on its bid to acquire the Tri-Rail contract. Defs.’ Facts ¶¶ 57, 69, 84; Pl.’s Supp. Facts § I ¶¶ 57, 69, 84. E. The Current Litigation In this action, Amtrak seeks to recover damages it has allegedly suffered as a result of not being awarded the SFRTA contract. Compl. at 1-2. As noted earlier, Amtrak asserts two claims against Veolia. The first count of the Complaint alleges that Veolia aided and abetted the three former Amtrak employees’ breach of their fiduciary duties owed to Amtrak, resulting in Amtrak not being awarded the SFRTA contract. Id. ¶¶ 53-59. The second count of the Complaint alleges that Veolia tortiously interfered with Amtrak’s prospective business expectancy associated with the Tri-Rail contract. Id. ¶¶ 60-66. Pursuant to Federal Rule of Civil Procedure 56, Amtrak has moved for partial summary judgment on the first count of its Complaint. Pl.’s Mot. at 1. Amtrak contends as support for its motion that (1) its three former employees each owed a fiduciary duty to Amtrak, Memorandum of Law in Support of Plaintiffs Motion for Summary Judgment as to Liability on Count I (“Pl.’s Mem.”) at 15-17, and (2) Veolia helped the employees breach those duties by extending contingent offers to them, id. at 23-24, including their names and résumés on its bid for the Tri-Rail contract, and inducing them to exclude them names from Amtrak’s bid, id. at 24. Veolia opposes the motion on the ground that genuine issues of material fact exist as to the claim asserted in Count I. Defendant’s Memorandum of Points and Authorities in Opposition to Amtrak’s Motion for Partial Summary Judgment (“Defs.’ Opp’n”) at 1. In addition, Veolia has filed a cross-motion for summary judgment on both counts of the Complaint, asserting, as to Count I, that there is no genuine issue of material fact as to the following: (1) that Amtrak’s former employees did not breach any fiduciary duties owed to Amtrak because the SFRTA contract was outside the scope of their employment, Defs.’ Mem. at 13; Defs.’ Opp’n at 9-10; (2) that signing the contingent offers did not constitute a breach of a fiduciary duty, Defs.’ Opp’n at 21; Defs.’ Mem. at 15-18; (3) that Veolia did not know its behavior would be aiding and abetting the breach of any fiduciary duty by Amtrak’s former employees, Defs.’ Opp’n at 18-20; and (4) that Amtrak cannot show that the inclusion of its then-employees on Veolia’s bid caused it to lose the SFRTA contract, id. at 15-17; Defs.’ Mem. at 25-28. As to Count II, Veolia argues that (1) as a competitive bidder Amtrak did not have a valid business expectancy in the SFRTA contract, Defs.’ Mem. at 31-35; (2) Veolia could not have known of Amtrak’s business expectancy because it did not know Amtrak was bidding on the contract, id. at 35-37; (3) Amtrak cannot show that it would have been awarded the contract even if Veolia had failed to submit a bid, id. at 37-42; and (4) various theories demonstrate that Amtrak is not entitled to money damages, id. at 42-44. II. Standard of Review To grant a motion for summary judgment under Rule 56(a), a court must find that the pleadings, the discovery, and any affidavits “show[ ] that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A material fact is one that “might affect the outcome of the suit under the governing law.” Hamilton v. Geithner, 743 F.Supp.2d 1, 6 (D.D.C.2010) (Walton, J.). In showing the existence of a material fact, the non-moving party cannot rely on “mere allegations or denials,” Burke v. Gould, 286 F.3d 513, 517 (D.C.Cir.2002) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)) (internal quotation marks omitted), because “conclusory allegations unsupported by factual data will not create a triable issue of fact,” Pub. Citizen Health Research Grp. v. FDA 185 F.3d 898, 908 (D.C.Cir.1999) (internal brackets, quotation marks, and citation omitted). If a party against whom a motion is filed fails to “establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial,” summary judgment for the movant is warranted. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). However, the party moving for summary judgment bears the burden of establishing that there is insufficient evidence to support the non-moving party’s case. Id. at 325, 106 S.Ct. 2548. “When ruling on a motion for summary judgment, the courts must view the evidence in the light most favorable to the non-moving party.” Quigley v. Giblin, 582 F.Supp.2d 1, 8 (D.D.C. 2008) (citing Bayer v. U.S. Dep’t of the Treasury, 956 F.2d 330, 333 (D.C.Cir. 1992)). Thus, a court “must draw all reasonable inferences in favor of the non[-]moving party, and it may not make credibility determinations or weigh the evidence.” Id. at 8. III. Legal Analysis A. The Defendants’ Failure to Exhaust Administrative Remedies Challenge As an initial matter, Veolia seeks summary judgment on Amtrak’s claims on the grounds that Amtrak failed to exhaust its administrative remedies. Defs.’ Mem. at 44. Amtrak responds that Florida law does not require “an unsuccessful bidder [to] exhaust administrative remedies before it may sue a competitor.” Plaintiff National Railroad Passenger Corporation’s Memorandum of Law in Opposition to Defendants’ Motion for Summary Judgment (“Pl.’s Opp’n”) at 37. Under Florida law, “[i]t is improper, if administrative remedies are adequate, to seek relief in [a trial] court before those remedies are exhausted.” Fla. Marine Fisheries Comm’n v. Pringle, 736 So.2d 17, 20 (Fla.Dist.Ct.App.1999) (internal quotation marks and citation omitted). “While ordinarily a plaintiff who has an administrative remedy provided by statute must exhaust that remedy before a court will act to give the same remedy, a plaintiff is not required to pursue administrative remedies where they are not available and adequate,” Berkowitz v. City of Tamarac, 654 So.2d 982, 983 (Fla.Dist.Ct.App.1995) (internal quotation marks and citation omitted), “such as when a plaintiff seeks monetary damages that an administrative forum has no authority to award,” Barry Cook Ford, Inc. v. Ford Motor Co., 616 So.2d 512, 517 (Fla.Dist.Ct.App.1993). Pursuant to the Request for Proposals, bidders for the Tri-Rail contract had the right to file a protest of the SFRTA’s decision within 72 hours of the contract’s award. Defs.’ Mem., Rauch Decl., Ex. 1 (RFP) § 1.16(a) at AMTH 004102; Defs.’ Facts ¶ 29. “Failure to file a notice of protest or failure to file a formal written protest ... [would] constitute a waiver of proceedings.” Defs.’ Mem., Rauch Decl., Ex. 1 (RFP) § 1.16(d) at AMTH 004103. In the event that such a protest was made and remained unresolved, the protest would be referred to the Florida Division of Administrative Hearings for further proceedings. Id., Rauch Decl., Ex. 1(RFP) § 1.16(g)-(h) at AMTH 004103-04. While Amtrak considered filing a protest, it never did. See Defs.’ Facts ¶¶ 215, 218. However, such a protest would have been ineffective considering the claims asserted by Amtrak. The Request for Proposals allowed for protests of “the specifications contained in [the Request for Proposals]” and by those who were “affected adversely by [the] SFRTA’s decision ... concerning a solicitation or contract award.” Defs.’ Mem., Rauch Decl., Ex. 1 (RFP) § 1.16(a)-(b) at AMTH 004102-03. Here, however, Amtrak seeks monetary relief for acts allegedly committed by Veolia, not by the SFRTA. Compl. at 1. In other words, Amtrak challenges the actions of Veolia and its employees, rather than the specifications of the Request for Proposals or the SFRTA’s selection decision. Thus, even if Amtrak had filed a timely protest, neither the SFRTA nor the Division of Administrative Hearings could have granted the relief now being requested by Amtrak in this litigation. See W. Radio Servs. Co. v. Qwest Corp., 530 F.3d 1186, 1199 (9th Cir. 2008) (noting that exhaustion is generally required in actions against agencies and agency officials, not those between two private parties). Therefore, the Court must deny the defendants’ motion for summary judgment based on the plaintiffs alleged failure to exhaust its administrative remedies. B. The Plaintiffs Aiding and Abetting the Breach of a Fiduciary Duty Claim (Count I) Amtrak and Veolia both seek summary judgment on Amtrak’s claim that Veolia aided and abetted breaches of fiduciary duties owed to Amtrak by its former employees. Amtrak contends in support of its motion for partial summary judgment that “there is no jury-submissable issue as to any of the[] elements” necessary to prevail on its claim for aiding and abetting a breach of fiduciary duty. Plaintiff National Railroad Passenger Corporation’s Reply Brief in Further Support of Its Motion for Partial Summary Judgment (“Pl.’s Reply”) at 2. The foundation for its position is that “Amtrak employees Mauck, Salemme and Stencil owed a fiduciary duty of loyalty to Amtrak; they each breached that duty at the behest of Veolia; Veolia (having induced and orchestrated the breach) certainly had knowledge of the breaches; and Veolia (to say the least) substantially assisted and encouraged the wrongful conduct.” Pl.’s Mem. at 14-15. More specifically, Amtrak argues that (1) the three employees were all Amtrak employees who owed it an undivided duty of loyalty, id. at 15-16; (2) the three employees breached that duty by entering into competition with Amtrak by agreeing to have their names placed on Veolia’s bid proposal for the SFRTA contract, id. at 19-21; (3) Veolia was aware that it was aiding and abetting the three employees’ breach of their fiduciary duties because it knew the employees worked for Amtrak, the three employees consented to appear on Veolia’s bid, and they were subject to a conflict-of-interest policy similar to the one Veolia itself employs, id. at 22-23; and (4) Veolia substantially assisted the three employees’ breaches by approaching them and offering them contingent job offers if it acquired the SFRTA contract, id. at 23-25. In response, Veolia argues that the Court cannot grant the plaintiffs partial motion for summary judgment because “there are genuine issues of material fact [that] preclud[e] summary judgment.” Defs.’ Opp’n at 1. Veolia contends that factual issues exist because it can show that (1) the former Amtrak employees did not breach a fiduciary duty that was within the scope of their employment, id. at 7-15; (2)it could not have known of, nor did it, substantially aid and abet a breach that never occurred, id. at 18-21; and (3) Amtrak cannot establish that it would have been awarded the SFRTA contract had its former employees not agreed to have their names placed on Veolia’s bid for the SFRTA contract, thus precluding Amtrak from establishing an essential element of its breach of a fiduciary duty claim, that is, causation, id. at 15-18. To prevail on its motion for summary judgment on Count I of its Complaint, Amtrak must show that there is no genuine dispute of a material fact as to the following: “(1) a fiduciary duty on the part of the primary wrongdoer, (2) a breach of this fiduciary duty, (3) knowledge of this breach by the alleged aider and abettor, and (4) the aider and abettor’s substantial assistance or encouragement of the wrongdoing.” Amtrak I, 592 F.Supp.2d at 94 (quoting AmeriFirst Bank v. Bomar, 757 F.Supp. 1365, 1380 (S.D.Fla.1991)); see also Halberstam v. Welch, 705 F.2d 472, 477 (D.C.Cir.1983). Conversely, for Veolia to prevail on its cross-motion for summary judgment on Count I, it must show that there are no genuine disputes of material facts and that those undisputed facts are sufficient to defeat one or more elements of Amtrak’s claims regarding any of these four elements, or on the question of whether Amtrak suffered “injuries that were proximately caused by the breach of [its former employees’] fiduciary duties.” Armenian Genocide Museum & Mem’l, Inc. v. Cafesjian Family Found., Inc., 607 F.Supp.2d 185, 191 (D.D.C.2009) (citing Paul v. Judicial Watch, Inc., 543 F.Supp.2d 1, 5-6 (D.D.C.2008)). 1. Fiduciary Duty Owed to Amtrak By the Three Former Amtrak Employees “Unless otherwise agreed, an agent” owes a fiduciary duty to his principal “to act solely for the benefit of the principal in all matters concerned with his agency.” Gross v. Akin, Gump, Strauss, Hauer & Feld, LLP, 599 F.Supp.2d 23, 32 (D.D.C.2009). Thus, the threshold question in determining whether Salemme, Stencil, and Mauck owed a fiduciary duty of loyalty to Amtrak is whether they were “agents” of Amtrak. Whether an agency relationship existed between Amtrak and its three former employees depends, in part, on “(1) the selection and engagement of the [employees], (2) the payment of wages, (3) [Amtrak’s] power to discharge [the employees], (4) [Amtrak’s] power to control the [employees’] conduct, (5) and whether the work [or conduct at issue] is part of the regular business of the employer.” LeGrand v. Ins. Co. of N. Am., 241 A.2d 734, 735 (D.C.1968) (quoting Dovell v. Arundel Supply Corp., 361 F.2d 543, 544 (D.C.Cir.1966)); Judah v. Reiner, 744 A.2d 1037, 1040 (D.C.2000). The District of Columbia Court of Appeals has noted that when “the employer has the right to control and direct the servant,” then an agency relationship will generally be found. Judah, 744 A.2d at 1040 (quoting Le-Grand, 241 A.2d at 735). However, it is not the “actual exercise” of control or supervision that is determinative, but merely “the right [of the employer] to control” an employee that “is usually dispositive of whether there is an agency relationship.” Id. (citing Safeway Stores, Inc. v. Kelly, 448 A.2d 856, 860 (D.C.1982)). Generally, “[an] agent has a fiduciary duty to act loyally for the principal’s benefit in all matters connected with the agency relationship.” Restatement (Third) of Agency § 8.01 (2006). A “ ‘fiduciary relationship arises when one person ... manifests assent to another person ... that the agent shall act on the principal’s behalf and subject to the principal’s control, and the agent manifests assent or otherwise consents so to act.’ ” Jenkins v. Strauss, 931 A.2d 1026, 1033 (D.C.2007) (quoting Restatement (Third) of Agency § 1.01). Accordingly, fiduciary principles are applicable to employees. See Gov’t Relations Inc. v. Howe, No. Civ. A 05-1081, 2007 WL 201264, at *10 (D.D.C. Jan. 24, 2007) (stating that in “the field of corporate employment ... it has been established that employees ... owe an undivided and unselfish loyalty to the corporation” (citations and internal quotation marks omitted)); see also Draim v. Virtual Geosatellite Holdings, Inc., 631 F.Supp.2d 32, 39 (D.D.C.2009) (indicating that “even in the absence of a written contract and even in an employment agreement that is at will, an employee must, as a matter of agency law, act solely for the benefit of her principal in all matters concerning her agency” (citations omitted)). Here, although the three employees were at-will employees, Amtrak had the right to “control and direct ... [their] work performance[ and] the manner in which they conducted their work, and ... [that] their work was part of the regular business of Amtrak.” Amtrak I, 592 F.Supp.2d at 95. Also, Amtrak has a policy prohibiting its employees from engaging in activities that create a conflict of interest with Amtrak. Pl.’s Reply at 8 n. 6. Mauck and Stencil each signed a “Certificate of Compliance,” certifying that they reviewed and agreed to the policy. Pl.’s Facts ¶¶ 96-97. While Salemme declined to sign the document, he was aware of his obligations under the policy. Id. ¶ 98. Indeed, “it has been established that employees — especially managers, corporate officers, and directors — owe an undivided and unselfish loyalty to [their corporate employers,] such that there shall be no conflict between duty and self interest,” Gov’t Relations, Inc., 2007 WL 201264, at *10 (internal quotation marks omitted), and here, Salemme, Stencil, and Mauck were all management-level employees, see Pl.’s Reply at 5; Defs.’ Facts ¶¶ 49, 63, 73 (noting that their titles were Assistant Superintendent for Maine Passenger Service, Senior Analyst in Amtrak’s Operating Practices Section, and District Manager of Stations, respectively). Mr. Salemme’s responsibilities included “starting] a brand new service,” and he was tasked with “organizing] and protecting] the agreements that Amtrak had ... with the state agencies.” Pl.’s Mot., Orseck Decl., Ex. 32 (Salemme Dep.) at 35:10-36:1. Mr. Stencil, as Senior Analyst in Amtrak’s Operating Practices Section, was primarily responsible for training employees. Id., Orseck Decl., Ex. 33 (Stencil Dep.) at 39:18-43:21. He provided training regarding operating rules, customer service, safety, revenue, and engineering recertification, and also administered operating rules examinations. Id. Mr. Mauck managed station operations in four states, which involved “[t]he day-to-day manag[ement] of people.” Id., Orseck Decl., Ex. 31 (Mauck Dep.) at 21:2-6, 26:11-28:20. Given the three employees’ job responsibilities, the Court agrees that they all owed Amtrak a general duty of loyalty. 2. Breach of the Fiduciary Duty As to this component of its claim, Amtrak first argues that the three employees breached their fiduciary duties by accepting a rival bidder’s contingent offers for employment, which created “a substantial financial incentive to see that Veolia, not Amtrak, won the [bid].” Pl.’s Mem. at 19. Second, Amtrak contends that the employees breached their fiduciary duties by permitting Veolia to include their names and résumés with its proposal, id. at 20, and by agreeing to withhold their names from Amtrak’s bid, Pl.’s Opp’n at 12-13, thus placing themselves “in direct competition with their employer’s best interests,” Pl.’s Mem. at 19 (internal alterations, quotation marks, and citation omitted). Veolia responds that the three employees did not solicit customers or employees for it, that it did not divert any Amtrak corporate opportunities, and it did not misuse any of Amtrak’s trade secrets. Defs.’ Mem. at 22-23. Instead, Veolia argues, the employees merely prepared to go into competition with Amtrak by making plans to work for Veolia after their employment ended. Id. at 15-16. Furthermore, Veolia posits that the employees were free not to disclose to Amtrak that they intended to work for Veolia so long as they did not compete with Amtrak prior to their separation from its employment. Id. at 16. Veolia contends that the employees acted in accordance with industry custom because “[i]n the government contracts public procurement world, it is custom and practice for contingently hired proposed employees to appear on multiple [bid] proposals.” Id. at 24. Veolia also represents that it did not ask the employees to refrain from appearing on Amtrak’s bid. Id. at 18. Finally, while Veolia concedes that an employee does owe a general duty of loyalty to an employer, it asserts that “there are genuine issues of material fact as to whether the individual employee’s scope of employment was so broad as to include a duty to refrain from accepting a better albeit potential job unrelated to their current work locations and responsibilities,” Defs.’ Opp’n at 7, and thus beyond their “scope of employment,” id. at 9. Amtrak has identified two separate acts that it maintains amounted to breaches of the three employees’ fiduciary duties. Veolia argues that even if these acts occurred, they would not fall within the scopes of the three former employees’ employment and therefore could not constitute breaches of their fiduciary duties. The Court will examine each purported act separately. a. Participation In A Rival’s Bid While employees are not permitted to enter into competition with their employer, they are entitled to “make arrangements or plans to go into competition with [their] principal before terminating [their employment] .... ” Mercer Mgmt. Consulting, Inc. v. Wilde, 920 F.Supp. 219, 233 (D.D.C.1996) (quoting Sci. Accessories Corp. v. Summagraphics Corp., 425 A.2d 957, 962 (Del.1980)). In determining whether an act is a breach or constitutes mere preparation, courts assess whether the employee engaged in “unfair acts” or caused “injury” to his employer. Gov’t Relations, 2007 WL 201264, at *10 (quoting Sci. Accessories Corp., 425 A.2d at 962). Acts that have been deemed to constitute preparation rather than actual competition include “mere preparation to open a competing businessf,] ... [o]pening a bank account and obtaining office space and telephone service,” Harllee v. Prof'l Serv. Indus., Inc., 619 So.2d 298, 300 (Fla.Dist.Ct.App.1992), as well as “purchasing] a rival business and upon termination of employment immediately competing]” with a former employer, Gov’t Relations, 2007 WL 201264, at *11 (quoting Mercer, 920 F.Supp. at 233); see also Jet Courier Serv., Inc. v. Mulei, 771 P.2d 486, 494 (Colo.1989). By comparison, acts that have been found to constitute actual competition include solicitation of business for an employee’s personal endeavor, which otherwise the employee had an obligation to obtain for an employer, competing with the employer for customers or employees, and employee behavior leading to the mass resignation of the employer’s workforce. See Sci. Accessories Corp., 425 A.2d at 965; Mercer, 920 F.Supp. at 234. Veolia argues that there is no legal support for the proposition that accepting a contingent offer of employment is a breach of fiduciary duty, Defs.’ Opp’n at 14, and Amtrak acknowledges that “[t]here is nothing inherently wrong with the concept of a ‘contingent offer,’ ” Pl.’s Opp’n at 15 n. 13. Instead, Amtrak asserts that it is improper for an employee to accept a contingent offer of employment from one company and permit his name to appear on that company’s bid for the same contract the employee’s current employer is also seeking to acquire. Id. at 14. Further, Amtrak contends that the employees did not merely prepare to compete, but put themselves “in direct competition with the employer’s best interests.” Id. at 9 (quoting Amtrak I, 592 F.Supp.2d at 95). This Court and others have held that the fiduciary duty of loyalty may be breached when an employee participates in the bid of an employer’s rival. In Radio TV Reports, Inc. v. Ingersoll, 742 F.Supp. 19 (D.D.C.1990), a corporation sued its former manager after the manager’s own newly created corporation won a bid on a contract that was submitted while the manager was still employed by his former corporate employer. Id. at 20. A former member of this Court found that the manager had breached the duty of loyalty owed to his former employer, and assessed liability against him because “[h]ad [the] defendant not breached his duty of loyalty and bid on the contract, [the] plaintiff would have been awarded the contract.” Id. at 21-22; see Abbott Redmont Thinlite Corp. v. Redmont, 475 F.2d 85, 89 (2d Cir.1973) (determining that largely because of the “likelihood that but for [the defendant’s] competition [the plaintiff] would have been awarded the contract ... [the defendant] violated his fiduciary obligations to [the plaintiff] by submitting competing bids” (emphasis omitted)). But see Mercer, 920 F.Supp. at 233 (“[B]efore the end of [an employee’s] employment, he can properly purchase a rival business and upon termination of employment immediately compete.” (quoting Restatement (Second) of Agency § 393 cmt. E (1958))). “[T]he ultimate determination of whether an employee has breached his fiduciary duties to his employer by preparing to engage in a competing enterprise must be grounded upon a thorough[ ] examination of the facts and circumstances of the particular case.” Mercer, 920 F.Supp. at 234 (quoting Md. Metals, Inc. v. Metzner, 282 Md. 31, 382 A.2d 564, 570 (1978)); see also Quality Sys., Inc. v. Warman, 132 F.Supp.2d 349, 354 (D.Md.2001) (“There is no set rule denoting when an employee has breached his fiduciary duty; rather, a court must examine the facts of each particular case.”). Reflecting upon the facts and circumstances of this case, the employees’ conduct was not so egregious that it can be said to have constituted a breach of their fiduciary duties to Amtrak as a matter of law, but neither is it so benign to entitle Veolia to summary judgment on this issue. A reasonable jury could certainly find that by participating in Veolia’s bid for the Tri-Rail contract, the management-level employees were breaching the fiduciary duties they owed to Amtrak, because in doing so they were putting themselves in direct competition with Amtrak. See Md. Metals, 382 A.2d at 568 (noting that a “corollary of [the] general principle of loyalty is that a ... high-echelon employee is barred from actively competing with his employer during the tenure of his employment”). Conversely, a fact-finder could reasonably conclude that the employees’ participation in the rival bid was more akin to preparation rather than actual competition. See, e.g., Crawford & Co. v. M. Hayes & Assocs., L.L.C., 13 Fed.Appx. 174, 177 (4th Cir.2001) (affirming fact-finder’s decision that an employee’s active recruitment of mid-level managers for a competing business did not constitute the breach of the employee’s fiduciary duty). Further, courts often give weight to whether an employer was given notice that an employee was competing or preparing to compete. Compare Cudahy Co. v. Am. Labs., Inc., 313 F.Supp. 1339, 1346 (D.Neb.1970) (noting that an employee has a duty to disclose competitive activity when it may be harmful to his employer), with Crawford, 13 Fed.Appx. at 177 (considering the fact that the employer “was aware of the possibility that [the employee] might resign and form [its own] business” in affirming decision that no breach occurred). Here, there is a dispute as to whether Amtrak had knowledge that its employees were being solicited to participate in Veolia’s bid for the SFRTA contract. Amtrak disclaims that it had any such knowledge, PL’s Supp. Facts § I ¶ 90, while Veolia claims that “Amtrak managers knew that Veolia was recruiting Amtrak personnel for the Tri-Rail procurement long before the due date for proposals,” Defs.’ Facts ¶ 90. Given that the Court cannot “weigh conflicting evidence or weigh the credibility of the parties,” Furmanite America, Inc. v. T.D. Williamson, Inc., 506 F.Supp.2d 1134, 1138 (M.D.Fla.2007), the Court must defer to the jury as the ultimate fact-finder on this question. For the several reasons just discussed, the Court concludes that a material question of fact exists as to whether Amtrak’s former employees breached their duty of loyalty by allowing their names to be used in connection with Veolia’s bid for the TriRail contract. See Jet Courier Serv., 771 P.2d at 494 (reversing trial court’s ruling that an employee’s pre-termination conversations with the employer’s customers was not a breach of loyalty as a matter of law, because it “involve[d] a question of fact to be determined by ... a consideration of all the circumstances of the case”). b. Refusal to Participate in Amtrak’s Bid The Court also finds that there is an outstanding dispute that must be resolved by a jury as to whether Veolia induced or required the three former Amtrak employees to refrain from participating in Amtrak’s bid. Veolia does not seem to contest that such an inducement would constitute a breach of a fiduciary duty, but rather challenges Amtrak’s claim that it has submitted evidence sufficient to eliminate any genuine issue of material fact on this matter. See Defs.’ Mem. at 17-21. The Court must therefore review the evidence regarding whether Veolia instructed the three employees to refrain from being associated with Amtrak’s bid. Amtrak bases its position on the following evidence. First, Amtrak points to Jason Steffensen’s testimony that Mr. Birckett mentioned he had asked the individuals selected for Veolia’s Key Management Team “not to sign up with Amtrak,” and “that he suspected that Doug Stencil ... had broken that agreement .... ” Pl.’s Opp’n, Declaration of Eva A. Temkin in Support of Plaintiffs Opposition to Defendants’ Motion for Summary Judgment (“Temkin Deck”), Ex. 14 (June 4, 2008 Deposition Transcript of Jason Steffensen) (“Steffensen Dep.”) at 115:5-15; Pl.’s Opp’n at 13. Second, Amtrak suggests that Mr. Salemme’s statement during his deposition that he “was involved with (Veolia] already ... [s]o, [he was] not going to have [his] name in two different places,” allows for a reasonable inference that by signing Veolia’s contingent offer Mr. Salemme understood that he was not to have his name submitted on any other bid. Pl.’s Mot., Orseck Decl. Ex. 32 (Salemme Dep.) at 76:5-20. In response, Veolia presents affidavits by Mr. Birckett and the three former Amtrak employees denying Amtrak’s allegations. See Defs.’ Mem., Affidavit of Sidney N. Birckett (“Birckett Aff.”) ¶ 11; Mauck Aff. ¶ 10; Affidavit of Douglas W. Stencil (“Stencil Aff.”) ¶ 9; Affidavit of Victor W. Salemme (“Salemme Aff.”) ¶ 7. Veolia also points to the contingent offers themselves, which do not state that they were exclusive agreements. See Pl.’s Mot., Orseck Decl., Ex. 26 (Salemme Offer), Ex. 29 (Mauck Offer), Ex. 30 (Stencil Offer). Finally, Veolia observes that Mr. Mauck applied for a position on Amtrak’s Key Management Team for the Tri-Rail bid, Defs.’ Mem., Mauck Aff. ¶ 8, and, moreover, that Mr. Stencil actually did participate on Amtrak’s bid, Defs.’ Counter Facts § I ¶ 71; Defs.’ Facts ¶ 69. To survive a summary judgment motion, Amtrak or Veolia need only produce “more than a ‘mere existence of a scintilla of evidence’ in support of its position,” so that a “jury could reasonably find for the non-moving party.” Threadgill v. Spellings, 377 F.Supp.2d 158, 160 (D.D.C.2005) (quoting Anderson, 477 U.S. at 252, 106 S.Ct. 2505). While Veolia offers more extensive evidence relating to this issue — specifically, four affidavits and four contingent offer letters — whereas Amtrak offers only two deposition testimonial statements, it is the Court’s obligation at this stage of the proceedings to “examine[] this evidence in [the] light most favorable to the [non-movant]” as to each motion. Id. at 166. Accordingly, because both parties have presented more than a scintilla of evidence, they have satisfactorily demonstrated issues of genuine fact that make summary judgment inappropriate for either party on this element. See Furmanite America, 506 F.Supp.2d at 1138. 3. Knowledge of the Breach of a Fiduciary Duty Even if the Court could reach the conclusion that the three employees breached their fiduciary duties to Amtrak, summary judgment would still be inappropriate, as Amtrak has failed to prove the non-existence of an issue of fact as to Veolia’s knowledge of the alleged breach by the former Amtrak employees — the third essential element of a claim for aiding and abetting the breach of a fiduciary duty. Veolia also fails to establish the non-existence of a genuine issue of material fact on this component of Amtrak’s claim. Veolia argues that it could not have known it was aiding the breach of a fiduciary duty for three reasons. First, Veolia contends that when it extended contingent offers to the three former Amtrak employees, Amtrak’s bidding status was indeterminate. Defs.’ Opp’n at 19. Second, Veolia argues it could not have known that the employees “had special agency responsibilities for the Tri-Rail procurement.” Id. Finally, Veolia posits that because it was following industry custom, it was unaware that its behavior was improper. Id. Amtrak responds that Veolia knew all that was necessary for it to have a general awareness of the breaches because it knew the employees were employed by Amtrak, knew these employees were signing contingent offers with Veolia, knew Amtrak would likely be bidding on the Tri-Rail contract, and knew the employees’ participation with Veolia was creating a conflict of interest for the employees because of Veolia’s own conflict-of-interest policy. Pl.’s Mem. at 22-23; Pl.’s Reply at 13-17. “A general awareness of wrongdoing on the part of the one being aided or abetted is sufficient to show knowledge on the part of an aider and abettor.” Amtrak I, 592 F.Supp.2d at 96 (citing Halberstam, 705 F.2d at 487-88). To establish aiding and abetting liability, “[t]he requisite intent and knowledge may be shown by circumstantial evidence.” Aetna Cas. & Sur. Co. v. Leahey Constr. Co., 219 F.3d 519, 535 (6th Cir.2000) (quoting Metge v. Baehler, 762 F.2d 621, 625 (8th Cir.1985)) (internal quotation marks omitted); see also Rolf v. Blyth, Eastman Dillon & Co., 570 F.2d 38, 47 (2d Cir.1978). Ultimately, “the exact level of knowledge necessary for liability remains flexible and must be decided on a case-by-case basis.” Aetna, 219 F.3d at 535 (quoting Camp v. Dema, 948 F.2d 455, 459 (8th Cir.1991)) (internal quotation marks and modifications omitted). In Aetna, the Sixth Circuit, in determining whether a bank knew a customer to whom it had extended a loan was engaging in tortious conduct, considered the duration of the parties’ relationship, the timing of financial transactions, the speed with which the loans were paid off, and the specialized knowledge banks possess. 219 F.3d at 535-36. The court ultimately determined that it would not be unreasonable to conclude that the bank had knowledge of the conduct. Id. In particular, the court rejected the argument that just because short-term loans were “commonplace,” it was prevented from inferring knowledge of misconduct based on the “context” in which the loan in question was made. Id. at 536. On the record in this case, summary judgment for either party would be inappropriate because both Veolia and Amtrak contest many of the facts central to whether Veolia had knowledge of the alleged breach by Amtrak’s former employees. For example, Jason Steffensen testified that “[Mr. Birckett] had asked ... his key employees ... not to sign up with Amtrak.” Pl.’s Opp’n, Temkin Decl., Ex. 14 (Steffensen Dep.) at 115:10-12. If a jury were to credit this testimony, rather than Veolia’s account, see, e.g., Defs.’ Mem., Birckett Aff. ¶ 11 (“Neither I nor anyone else at Veolia as far as I am aware ever requested or directed Messrs. Salemme, Stencil, or Mauck to not participate in or support Amtrak’s bid .... ”), then it could also reasonably infer that Veolia knew it was engaging in improper behavior. Alternatively, a jury might agree that Veolia was acting in accordance with industry custom, as evidenced by similar behavior having occurred on at least one prior occasion, see Defs.’ Facts ¶ 104 (providing an example of another transportation services company including an employee of a competitor in its bid for a contract), and thus had no reason to know that it was engaging in wrongdoing. Finally, there is conflicting evidence as to the certainty with which Veolia should have known Amtrak would be bidding for the Tri-Rail contract. Although Amtrak’s final decision to submit a bid was not made until December 2006 or early January 2007, Defs.’ Facts ¶ 193, Amtrak did begin advertising on its website for its Key Management Team positions as early as November 2, 2006, id. ¶ 110, its representatives attended a pre-proposal conference, Pl.’s Facts ¶ 19; Defs.’ Counter Facts § I ¶ 19, and it is one of the primary providers of railway services in this country, Pl.’s Mot., Orseck Decl., Ex. 5 (Expert Report of Lonnie E. Blaydes on Behalf of Veolia Transportation Services, Inc. Submitted Sept. 8, 2008) (“Blayde Rep.”), Attach. II at 5 (“the ‘Big Three’ of Amtrak, Herzog, and Veolia”). A reasonable jury could choose to credit either parties’ position, and therefore could accept or reject the defendants’ denial of knowledge. 4. Substantial Assistance or Encouragement of the Wrongdoing Having demonstrated that genuine issues of fact exist regarding whether its three former employees breached their fiduciary duties owed to Amtrak and whether Veolia had knowledge of the purported breaches, in order to avoid summary judgment being awarded to Veolia, Amtrak must also demonstrate either one of the following: that there are genuine issues of material fact as to whether Veolia’s conduct amounted to substantial assistance or encouragement of the wrongdoing, or that there are no genuine issues of material fact on this issue and Veolia’s conduct did in fact constitute substantial assistance or encouragement. Veolia argues that its conduct did not amount to substantial assistance or encouragement, relying on many of the same arguments it has advanced already. See Defs.’ Opp’n at 21 (that its conduct “conform[ed] to industry standards!,]” that the former Amtrak employees’ actions were “beyond the scope of [their] employment!,]” that the “employees [were] free to prepare to compete!,]” and that it had “no knowledge” that it was aiding and abetting the breach of any fiduciary duty by Amtrak’s former employees). Amtrak responds by pointing out that it was Veolia that approached the three former Amtrak employees, it was Veolia that extended contingent offers to them, and it was Veolia that signed the Key Employee Certification forms on behalf of the three employees. Pl.’s Reply at 13-14. As noted earlier, “in order to establish aiding and abetting liability, a plaintiff must prove that the defendant provided ‘substantial assistance or encouragement to the primary party in carrying out the tortious act.’ ” Aetna, 219 F.3d at 537 (quoting Andonian v. A.C. & S., Inc., 97 Ohio App.3d 572, 647 N.E.2d 190, 192 (1994)) (internal quotation marks omitted). In other words, a plaintiff must show that the defendant proximately caused the vio lation or was a substantial factor in causing the tort. K & S P’ship v. Cont’l Bank, N.A., 952 F.2d 971, 979 (8th Cir. 1991) (citing Metge, 762 F.2d at 624). Facts to consider in determining whether substantial assistance or encouragement was provided in an aiding and abetting claim include, “[t]he nature of the act encouraged!!;] the amount [and kind] of assistance given; the defendant’s absence or presence at the time of the [alleged] tort; [the defendant’s] relation to the tortious actor; and the defendant’s state of mind.” Amtrak I, 592 F.Supp.2d at 96 (quoting Halberstam, 705 F.2d at 483-84). Based on the current record in this case, it is undisputed that Veolia extended contingent offers to the three former Amtrak employees. Defs.’ Facts ¶¶ 56, 68, 83. It is also undisputed that Veolia submitted with their bid proposal Key Employee Certification forms signed by these former employees. Defs.’ Mem., Mauck Aff. ¶ 7; Stencil Aff. ¶ 6; Salemme Aff. ¶ 5. However, there are genuine issues of material fact as to whether Veolia participated in a tortious act, i.e., aiding and abetting breach of a fiduciary, duty, see supra Part III.B.2., and thus whether Veolia gave substantial assistance or encouragement “in carrying out the tortious act,” Aetna, 219 F.3d at 537. Therefore, a finding in Amtrak’s favor as to the fourth element of the aiding and abetting claim is precluded. Thus, while the Court has determined that the three former Amtrak employees owed a general duty of loyalty to Amtrak, genuine issues of material fact preclude the issuance of summary judgment for either party on the remaining three elements of the plaintiffs aiding and abetting the breach of a fiduciary duty claim. Therefore, the Court finds that neither party is entitled to summary judgment on Count I of the plaintiffs Complaint. C. The Plaintiffs Tortious Interference with an Economic Advantage Claim (Count II) Veolia also moves for summary judgment on Count II of the Complaint, which alleges tortious interference with Amtrak’s business expectancy associated with the Tri-Rail contract. Defs.’ Mot. at 1-2; Defs.’ Mem. at 29. Veolia argues that Amtrak did not have a valid expectancy in winning the SFRTA contract because: (1) Veolia’s competitive activity was “privileged,” Defs.’ Mem. at 31; (2) there is a per se rule against any business expectancy by an unsuccessful bidder for a government contract, id. at 31-33; and (3) Amtrak’s expectation of winning the contract was not commercially reasonable, id. at 34-35. Veolia goes on to argue that it had neither the necessary knowledge of Amtrak’s expectancy nor the intent to interfere with it. Id. at 35-37. Veolia further asserts that its actions did not cause Amtrak to lose the SFRTA contract and directs the Court’s attention to the point differential between Amtrak’s and Veolia’s bids as support, arguing that Veolia would have been able to su