Mcgowan & Co. v. Bogan (93 F. Supp. 3d 624, 2015)

MEMORANDUM AND ORDER

NANCY F. ATLAS, District Judge.

This breach of contract and business torts case is before the Court on cross-motions for summary judgment. Plaintiff/Counter-Defendant McGowan & Company, Inc. (“McGowan” or “Plaintiff’) filed a Motion for Partial Summary Judgment (“Plaintiffs Motion”) [Doc. #111], to which Defendants/Counter-Claimants Roger F. Bogan (“Bogan”), Swain & Baldwin Insurance (“SBI”), Universal Managers, Inc. (“UMI”), and Ray B. Baldwin (“Baldwin”) (collectively, “Defendants”) filed a Response (“Defendants’ Response”) [Doc. # 118], and Plaintiff filed a Reply (“Plaintiffs Reply”) [Doc. # 121]. Defendants filed a Motion for Summary Judgment (“Defendants’ Motion”) [Doc. # 96], to which Plaintiff filed a Response (“Plaintiffs Response”) [Doc. # 119], and Defendants filed a Reply (“Defendants’ Reply”) [Doc. # 123]. Both motions are ripe for review.

Having carefully reviewed the parties’ briefing, all matters of record, and the applicable legal authorities, the Court grants in part and denies in part both motions for summary judgment. The Court concludes that Ohio law .applies to Plaintiffs breach of contract claim because there are no grounds for setting aside the parties’ contractual choice of law. Texas law, however, governs Plaintiffs tort claims, pursuant to Ohio choice-of-law rules .and § 145 of the Restatement (Second) of Conflict of Laws.

Applying Ohio law to Plaintiffs contract claim against Bogan, the Court concludes that the Trade Secrets & Special Terms Agreement (the “Agreement”) is not unconscionable and is generally enforceable as explained herein. Because Ohio law applies to Plaintiffs breach of contract claim, Plaintiffs claim for attorneys’ fees pursuant to § 38.001 of the Texas Civil Practices and Remedies Code is dismissed. Under recent Ohio law, Plaintiff may recover fair, just, and reasonable attorneys’ fees pursuant to Paragraph 27 of the Agreement, if Plaintiff prevails on its breach of contract claim against Bogan. The Court, however, declines to grant summary judgment for either party on Plaintiffs breach of contract claim on this record. There are numerous genuine disputes of material fact on the issue of breach. The Court requires Plaintiff to file a more definite statement clarifying its theory of damages and the evidentiary basis for recovering damages.

Applying Texas law to Plaintiffs tort claims, the Court concludes Plaintiffs claims for misappropriation of trade secrets and unjust enrichment should be dismissed. The Court construes Plaintiffs claim for breach of the duty of loyalty under Ohio law as a claim for breach of fiduciary duty under Texas law. Neither Bogan nor Plaintiff is entitled to summary judgment on this claim because there are genuine disputes of material fact on the element of breach, and, on the record presented, the Court declines to award summary judgment to either party on the issue of damages. Summary judgment is also denied without prejudice on Plaintiffs claims against all Defendants for tortious interference with business relationships and tortious interference with prospective business relationships. The parties have not meaningfully briefed the elements of Plaintiffs tortious interference claims under Texas law. Plaintiff is required to submit a more definite statement, and the parties may then file motions for summary judgment on these two torts in accordance with the Court’s amended Scheduling Order.

Finally, Plaintiff is awarded summary judgment on Defendants’ counterclaim. '

I. BACKGROUND

A. Facts

Plaintiff McGowan is an Ohio corporation with its principal place of business in Ohio. McGowan, Excess & Casualty (“McGowan Excess”) is a registered trade name of McGowan. McGowan “designs, administers, and markets highly-specialized programs of insurance” and has offices in several states, including Texas. Defendant SBI is an insurance retail agent located in Texas. Defendant Baldwin is the president and sole owner of SBI. Defendant UMI is a small wholesale insurance broker, incorporated in Texas and owned by Defendant Baldwin’s son, Sam Baldwin.

The undisputed facts are as follows. In February 2006, Bogan began working for McGowan as the Regional Vice-President and Branch Manager of the office in Dallas, Texas. Bogan worked in this capacity for McGowan for over five years. On March 13, 2006, shortly after Bogan started working for McGowan, Chris Longo, the current CEO of McGowan Excess, emailed Bogan a copy of McGowan’s “Trade Secrets & Special Terms Agreement” (the “Agreement”) [Doc. # 111-2]. That same day, Bogan received and signed the Agreement in Texas., A McGowan representative signed the Agreement on March 30, 2006. On July 15, 2011, Bogan informed Longo he was resigning from McGowan. Bogan continued to work for McGowan for several weeks, and his last day of employment was August 5, 2011. In July or August 2011, Bogan began working for UMI.

The disputed facts center around Bo-gan’s search for new employment and his conduct directly before and after his resignation. The parties contest the circumstances under which Bogan resigned and the facts surrounding the beginning of his employment with UMI. Plaintiff alleges that Bogan engaged in a series of activities that breached the Agreement and his fiduciary duties, such as sending emails to McGowan’s customers soliciting business and redirecting potential business from McGowan to UMI or SBI.

B. Procedural History

On or about October 28, 2011, Plaintiff sued Defendants in the Court of Common Pleas of Cuyahoga County, Ohio. See Complaint [Doc. # 1-1]; Notice of Removal [Doc. # 1], ¶ 1. Defendants timely removed this case to federal district court in the Northern District of Ohio on the basis of complete diversity of citizenship between the parties. See Notice of Removal, ¶ 13. On June 6, 2012, the Honorable James Gwin of the Northern District of Ohio transferred this case under 28 U.S.C. § 1404(a) to the Southern District of Texas. See Opinion & Order dated June 6, 2012 (“Transfer Order”) [Doc. #37]. On November 2, 2012, the Court granted Plaintiffs unopposed motion for leave to file an amended complaint. See Order on McGowan & Company, Inc.’s Unopposed Motion for Leave to File First Amended Complaint [Doc. # 54].

Plaintiffs Amended Complaint asserts causes of action against all four Defendants (Bogan, Baldwin, SBI, and UMI) for misappropriation of trade secrets, tortious interference with business relationships, and tortious interference with prospective business relationships. Amended Complaint, ¶¶ 30-38, 53-73. Plaintiff further sues Bogan for breach of the Agreement, unjust enrichment, and breach of the duty of loyalty. Id., ¶¶ 39-52, 74-79. Finally, Plaintiff requests attorneys’ fees pursuant to § 38.001 of the Texas Civil Practices and Remedies Code. Id., ¶¶ 80-81. Defendants subsequently filed a counterclaim “pursuant to Rule 11 of the Federal Rules of Civil Procedure” for “the recovery of their reasonable and necessary attorney’s fees which they have been caused to incur as a result of the groundless and bad faith litigation which has been prosecuted against them by Plaintiff.” Defendants’ First Amended Answer and Counterclaim (“Amended Answer”) [Doc. # 53], ¶ 12.

On December 11, 2014, the parties filed the instant cross-motions for summary judgment. These motions are ripe for review. Defendants seek summary judgment on their counterclaim and all of Plaintiffs claims. Plaintiff seeks summary judgment on all claims against Bogan and Defendants’ counterclaim. The Court first addresses each of Plaintiffs claims, then turns to Defendants’ counterclaim.

II. SUMMARY JUDGMENT STANDARD

Rule 56 of the Federal Rules of Civil Procedure provides for the entry of summary judgment against a plaintiff who fails to make a sufficient showing of the existence of an element essential to her case and on which she will bear the burden at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Curtis v. Anthony, 710 F.3d 587, 594 (5th Cir.2013); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994) (en banc). Summary judgment “should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548; Curtis, 710 F.3d at 594.

For summary judgment, the initial burden falls on the movant to identify areas essential to the non-movant’s claim in which there is an “absence of a genuine issue of material fact.” ACE Am. Ins. Co. v. Freeport Welding & Fabricating, Inc., 699 F.3d 832, 839 (5th Cir.2012). The moving party, however, need not negate the elements of the nonmovant’s case. Coastal Agric. Supply, Inc. v. JP Morgan Chase Bank, N.A., 759 F.3d 498, 505 (5th Cir.2014); Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir.2005). The moving party may meet its burden by pointing out “the absence of evidence supporting the nonmoving party’s case.” Moteara v. Garber, 353 F.3d 393, 404 (5th Cir.2003) (citing Celotex, 477 U.S. at 323, 106 S.Ct. 2548; Stults v. Conoco, Inc., 76 F.3d 651, 656 (5th Cir.1996)).

If the moving party meets its initial burden, the non-movant must go beyond the pleadings and designate specific facts showing that there is a genuine issue of material fact for trial. Gen. Universal Sys., Inc. v. Lee, 379 F.3d 131, 141 (5th Cir.2004); Littlefield v. Forney Indep. Sch. Dist., 268 F.3d 275, 282 (5th Cir.2001) (internal citation omitted). “An issue is material if its resolution could affect the outcome of the action.” Spring Street Partners-IV, L.P. v. Lam, 730 F.3d 427, 435 (5th Cir.2013). “A dispute as to a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” DIRECTV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir.2005) (internal citations omitted).

In deciding whether a genuine and material fact issue has been created, the court reviews the facts and inferences to be drawn from them in the light most favorable to the nonmoving party. Reaves Brokerage Co. v. Sunbelt Fruit & Vegetable Co., 336 F.3d 410, 412 (5th Cir.2003). A genuine issue of material fact exists when the evidence is such that a reasonable jury could return a verdict for the non-movant. Tamez v. Manthey, 589 F.3d 764, 769 (5th Cir.2009) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). “Conclusional allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation do not adequately substitute for specific facts showing a genuine issue for trial.” Oliver v. Scott, 276 F.3d 736, 744 (5th Cir.2002); accord Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 399 (5th Cir.2008). Instead, the nonmov-ing party must present specific facts which show “the existence of a genuine issue concerning every essential component of its case.” Firman v. Life Ins. Co. of N. Am., 684 F.3d 533, 538 (5th Cir.2012) (citation and internal quotation marks omitted). In the absence of any proof, the court will not assume that the non-movant could or would prove the necessary facts. Little, 37 F.3d at 1075 (citing Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990)). The Court may make no credibility determinations or weigh any evidence, and must disregard all evidence favorable to the moving party that the jury is not required to believe. Chaney v. Dreyfus Serv. Corp., 595 F.3d 219, 229 (5th Cir.2010) (citing Reaves Brokerage Co., 336 F.3d at 412-13).

Finally, “[w]hen evidence exists in the summary judgment record but the non-movant fails even to refer to it in the response to the motion for summary judgment, that evidence is not properly before the district court.” Malacara, 353 F.3d at 405. “Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party’s opposition to summary judgment.” Id. (internal citations and quotations omitted); Williams v. Valenti, 432 Fed.Appx. 298, 302 (5th Cir.2011).

III. PLAINTIFF’S CLAIMS

A. Choice of Law

Plaintiff contends Ohio law applies to all of its claims, while Defendants contend that Texas law applies.' In diversity jurisdiction cases, such as this one, a district court generally applies the choice-of-law rules of the forum state. Pioneer Exploration, L.L.C. v. Steadfast Ins. Co., 767 F.3d 503, 512 (5th Cir.2014); Jackson v. W. Telemarketing Corp. Outbound, 245 F.3d 518, 521 (5th Cir.2001). However, when a case is transferred pursuant to 28 U.S.C. § 1404(a), the transferee court must apply the choice-of-law rules of the transferor court. Ferens v. John Deere Co., 494 U.S. 516, 519, 110 S.Ct. 1274, 108 L.Ed.2d 443 (1990); Jackson, 245 F.3d at 521. Since this case was transferred from the Northern District of Ohio pursuant to § 1404(a), see Transfer Order, the Court applies Ohio choice-of-law principles. Ohio has adopted the Restatement (Second) of Conflict of Laws, which requires a different choice-of-law analysis for contract and tort claims. See Ohayon v. Safeco Ins. Co. of Ill., 91 Ohio St.3d 474, 747 N.E.2d 206, 208 (2001); Hagberg v. Delphi Auto. Sys., 268 F.Supp.2d 855, 860 (N.D.Ohio 2002). The Court first conducts the choice-of-law analysis for Plaintiffs breach of contract claim, then addresses what law applies to Pláintiff s tort claims.

1. Choice of Law on Plaintiffs Contract Claim

a. The Agreement’s Governing Law Clause

The dispositive issue regarding what law applies to Plaintiffs sole contract claim, a claim against Bogan for breach of the Agreement, is whether the Agreement’s choice-of-law provision is enforceable under Ohio’s choice-of-law rules. The Agreement contains the following “Governing Law” clause: “The provisions of this Agreement shall be governed by and construed in accordance with the laws of the State of Ohio applicable to contracts made in that state.” Agreement, ¶ 20. The parties do not dispute that this is a choice-of-law provision, and the Court concludes that it is.

“The Ohio Supreme Court in considering the deference to give contractual choice-of-law provisions has adopted the guidelines of the Restatement (Second) of Conflict of Laws, § 187(2) (1971).... ” Tele-Save Merch. Co. v. Consumers Distrib. Co., Ltd., 814 F.2d 1120, 1122 (6th Cir.1987) (citing Schulke Radio Prods., Ltd. v. Midwestern Broad. Co., 6 Ohio St.3d 436, 453 N.E.2d 683, 685-86 (1983)) (emphasis in original). Pursuant to the Restatement (Second) of Conflict of Laws §§ 187(2), 187(2)(a), and 187(2)(b), the Ohio Supreme Court has held that choice-of-law provisions are generally enforceable subject to two limited exceptions:

The law of the state chosen by the parties to govern their contractual rights and duties will be applied unless [1] either the chosen state has no substantial relationship to the parties or the transaction and there is no other reasonable basis for the parties’ choice, or [2] application of the law of the chosen state would be contrary to the fundamental policy of a state having a greater material interest in the issue than the chosen state and such state would be the state of the applicable law in the absence of a choice by the parties.

Jarvis v. Ashland Oil, Inc., 17 Ohio St.3d 189, 478 N.E.2d 786, 788 (1985) (quoting Schulke Radio Prods., Ltd., 453 N.E.2d at 684 (syllabus)) (alterations in original); see also Sekeres v. Arbaugh, 31 Ohio St.3d 24, 508 N.E.2d 941, 942 (1987) (per curiam); Restatement (Second) of Conflict of Laws § 187(2)(a), (b) (1971); Tele-Save Merch. Co., 814 F.2d at 1122. The Ohio Supreme Court favors enforcement of choice-of-law provisions and has held that “where the parties to a contract have made an effective choice of the forum law to be applied, the Restatement of the Law 2d, Conflict of Laws (1971) 561, Section 187(2), will not be applied to contravene the choice of the parties as to the applicable law.” Jarvis, 478 N.E.2d at 787 (syllabus); accord Tele-Save Merch. Co., 814 F.2d at 1122.

Here, the parties chose Ohio law to govern the Agreement. Agreement, ¶ 20. Plaintiff is incorporated and has its headquarters in Ohio. See Amended Complaint, ¶ l. Ohio, thus, has a substantial relationship to this case and there is a reasonable basis for the parties’ choice of Ohio law See Jarvis, 478 N.E.2d at 788 (holding the state of incorporation and principal place of business of one of the parties “clearly has a substantial relationship to the parties”); Sekeres, 508 N.E.2d at 942 (finding a substantial relationship existed between the chosen state and the parties under similar circumstances). Therefore, Ohio law, the governing law chosen by the parties, applies unless this case falls under the second exception recognized by the Ohio Supreme Court and Restatement § 187(2)(b).

Defendants rely on this second exception and argue that the Agreement’s choice-of-law provision should not apply because (1) applying Ohio law violates a fundamental Texas public policy against enforcing non-compete agreements; (2) Texas has a greater material interest in this issue than Ohio; and (3) in the absence of the parties’ choice, Texas law would apply under the factors set forth in Restatement (Second) of Conflict of Laws § 188. Defendants’ Response, at 3-6; Defendants’ Reply, at 3-4. Defendants’ argument turns on whether or not enforcement of Paragraph 6 of the Agreement, the “Non-Compete” clause, violates a fundamental public policy of Texas.

b. Whether the Agreement Violates a Fundamental Public Policy in Texas

To determine if the parties’ contractual choice of Ohio law should apply, the Court first must decide if the Agreement violates -a fundamental public policy of Texas. “ ‘In order for the chosen state’s law to violate the fundamental' policy of [the forum state], it must be shown that there are significant differences in the application of the law of the two states.’ ” Banek Inc. v. Yogurt Ventures U.S.A., Inc., 6 F.3d 357, 362 (6th Cir.1993) (quoting Tele-Save Merch., Co., 814 F.2d at 1123) (alteration in original). For the Court to set aside the parties’ choice of Ohio law in favor of Texas law, Ohio law must be “repugnant to and in violation of the public policy of’ Texas. See Jarvis, 478 N.E.2d at 789; Tele-Save Merch. Co., 814 F.2d at 1122.

Defendants argue that Paragraph 6 of the Agreement violates Texas public policy because Texas, unlike Ohio, requires non-compete clauses to be separately supported by adequate consideration and part of an otherwise enforceable agreement. Defendants’ Response, at 5. Defendants further contend that Paragraph 6 is an unenforceable non-compete clause because it does not contain time or geographic constraints. See id., at 12. The disputed clause, Paragraph 6, states:

6. Non-Compete

Furthermore, Employee agrees that he will never utilize the Trade Secrets, Confidential Information, or proprietary information of Employer to compete with Employer, nor disclose the Trade Secrets, Confidential Information, or proprietary information of Employer to any person, corporation, entity, or association which would allow that person, corporation, entity or association to compete with Employer.

Agreement, ¶ 6 (emphasis in original).

While Paragraph 6 purports to be a non-compete clause, it addresses only the use of confidential information, trade secrets, and proprietary information, and restricts a former employee’s ability to compete only to the extent the former employee intends to use the employer’s confidential information, trade secrets, and proprietary information. Texas law similarly imposes a duty on employees not to use a current or former employer’s trade secrets and confidential and proprietary information acquired during the employment relationship in any manner adverse to the employer, even after the employment relationship has ended. See Ultraflo Corp. v. Pelican Tank Parts, Inc., 926 F.Supp.2d 935, 961 (S.D.Tex.2013) (and cases cited therein); Cuidado Casero Home Health of El Paso, Inc. v. Ayuda Home Health Care Servs., LLC, 404 S.W.3d 737, 753 (Tex.App.-El Paso 2013, no pet.). Paragraph 6, thus, extends only to conduct already prohibited by Texas through this common law duty.

Moreover, Paragraph 6 and Texas’s common law duty are consistent with the distinctions between non-compete and nondisclosure agreements in Texas. Nondisclosure agreements are readily enforced in Texas and do not generally violate public policy. See Marsh USA Inc. v. Cook, 354 S.W.3d 764, 768 (Tex.2011). Non-disclosure covenants are generally not viewed as restraints on trade because these “covenants do not prohibit the former employee from using, in competition with the former employer, the general knowledge, skill, and experience acquired in former employment.” Zep Mfg. Co. v. Harthcock, 824 S.W.2d 654, 663 (Tex.App.-Dallas 1992, no writ) (emphasis in original); see also Brooks v. Excellence Mortg., Ltd., No. 04-13-00106-CV, 2014 WL 2434583, at *11 (Tex.App.-San Antonio May 30, 2014, no pet.). Accordingly, because Paragraph 6 is limited to trade secrets, confidential information, and proprietary information, it complies with Texas law and does not violate a fundamental public policy of Texas regarding non-compete covenants. Paragraph 6 contains nothing that’justifies setting aside the parties’ choice of Ohio law.

Defendants next argue that Paragraph 6 is unenforceable because it incorporates the Agreement’s overly broad definition of “trade secrets.” Defendants’ Reply, at 4. However, there is no substantial difference between Ohio and Texas law that warrants setting aside the parties’ choice of governing law. Texas has adopted the Restatement of Torts’ definition of trade secrets and defines a “trade secret” as “any formula, pattern, device or compilation of information which is used in one’s business and presents an opportunity to obtain an advantage over competitors who do not know or use it.” Computer Assocs. Int’l v. Altai, 918 S.W.2d 453, 455 (Tex.1996) (citing Hyde Corp. v. Huffines, 158 Tex. 566, 314 S.W.2d 763, 776 (1958); Restatement of Torts § 757 (1939)); accord In re Bass, 113 S.W.3d 735, 739 (Tex.2003). For years, Ohio followed the Restatement’s definition, but, currently defines “trade secret” a little differently under the Ohio Uniform Trade Secret Act (“OUTSA”) § 1336.1(D)(1)-(2). See Al Minor & Assoc., Inc. v. Martin, 117 Ohio St.3d 58, 881 N.E.2d 850, 853 (2008). Despite the linguistic distinctions in the definitions, both' the Texas Supreme Court and Ohio Supreme Court have adopted the Restatement of Torts’ six factor test to determine whether a trade secret exists. See In re Bass, 113 S.W.3d 735, 739 (Tex.2003); Al Minor & Assoc., Inc., 881 N.E.2d at 853. Although not identical, the definitions of trade secret in Ohio and Texas are not substantially different such that applying Ohio law would be repugnant to Texas public policy. Defendants, thus, have failed to show that the parties’ choice-of-law provision should be set aside because applying Ohio law would be “repugnant to and in violation of’ a fundamental Texas public policy. See Jarvis, 478 N.E.2d at 789; Tele-Save Merch., Co., 814 F.2d at 1122-23.

Defendants fail to satisfy the first element of the Restatement § 187(2)(b) exception to enforcement of the parties’ choice of law. The Court does not need to reach the remaining elements in the § 187(2)(b) analysis. See Tele-Save Merch. Co., 814 F.2d at 1123. The Agreement’s choice-of-law clause is enforceable. Ohio law, accordingly, applies to Plaintiffs breach of contract claim.

2. Choice of Law on Plaintiffs Tort Claims

a. The Agreement’s Governing Law Clause

Plaintiffs other causes of action against Bogan for breach of the duty of loyalty and unjust enrichment, and against all Defendants for misappropriation of trade secrets, tortious interference with business relationships, and tortious interference with prospective business relationships, sound in tort law. As an initial matter, the Court notes that these tort claims are not governed by the Agreement’s choice-of-law provision. The “Governing Law” clause states that only the “provisions of this Agreement” shall be governed by Ohio law. Agreement, ¶ 20. Defendants assert that the law applying to Plaintiffs breach of contract claim should also apply to Plaintiffs tort claims because, “[although the parties’ choice of law provision is limited to contract claims, all of McGowan[’s] claims stem from the Agreement between it and Bogan.” Defendants’ Reply, at 5 n. 3. Defendants do not cite the Court to any controlling authority in support of their argument. Furthermore, Defendants do not meaningfully explain why Plaintiffs tort claims in this case arise out of the Agreement. The Court is unpersuaded by Defendants’ position and will determine what law applies to Plaintiffs tort claims under Ohio’s choice-of-law rules for tort causes of action.

b. Whether Ohio or Texas Has the Most Significant Relationship to This Case

“[I]n Ohio, a party may overcome the presumption that the law of the place where the injury occurs will be applied to a tort action, if it can demonstrate that another state has a more significant relationship to the action.”' Muncie Power Products, Inc. v. United Techs. Auto., Inc., 328 F.3d 870, 874 (6th Cir.2003); see also Restatement (Second) of Conflict of Laws § 146. “In determining the State with the most significant relationship, Ohio courts consider: (1) ‘the place of the injury’; (2) the location ‘where the conduct causing the injury’ took place; (3) ‘the domicile, residence, ... place of incorporation, and place of business of the parties’; (4) ‘the place where the relationship between the parties ... is located’; and (5) any of the factors listed in Section 6 of the Restate-meat (Second) of Conflict of Laws “which the court may deem relevant to the litigation.’ ” Pilgrim v. Univ. Health Card, LLC, 660 F.3d 943, 946 (6th Cir.2011) (quoting Morgan v. Biro Mfg. Co., Inc., 15 Ohio St.3d 339, 474 N.E.2d 286, 289 (1984)); see also Restatement (Second) of Conflict of Laws § 145. The § 6 Restatement factors are “(a) the needs of the interstate and international systems, (b) the relevant policies of the forum, (c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue, (d) the protection of justified expectations, (e) the basic policies underlying the particular field of lav^, (f) certainty, predictability and uniformity of result, and (g) ease in the determination and application of the law to be applied.” Restatement (Second) of Conflict of Laws §§ 6(2)(a)-(g); Pilgrim, 660 F.3d at 946.

The parties have not meaningfully briefed the § 6 and § 145 Restatement factors. Nevertheless, there is an extensive record, which the Court considers along with the parties’ arguments on related issues.

Plaintiff contends that Ohio has the more significant relationship to this case because the injury to Plaintiff occurred in Ohio since Plaintiff is incorporated in Ohio and Plaintiffs principal place of business is there. Response, at 14-16. These arguments hark to the first and third § 145 Restatement factors, the place of injury and place of business of the parties. However, the importance of these factors is outweighed by this case’s substantial ties to Texas. Nearly all of the conduct allegedly constituting the torts and causing the injuries occurred in Texas. Bogan’s actions during his last few weeks of employment took place either entirely or in substantial part in Texas. Bogan left McGowan to work for UMI in Texas. Defendants are all residents of Texas. While Plaintiffs principal place of business is in Ohio, Plaintiff regularly conducts business in Texas through its branch in Dallas. The parties’ relationship was centered in Texas because Bogan worked at McGowan’s Dallas branch. Finally, none of the § 6 Restatement factors contravene these strong Texas ties. Accordingly, the Court concludes that Texas is the state with the most significant relationship to this ease, and thus Texas law applies to Plaintiffs tort claims.

Having resolved the choice-of-law issues and concluded that Ohio law governs Plaintiffs breach of contract claim and Texas law applies to Plaintiffs tort claims, the Court turns to the merits of each of Plaintiffs claims.

B. Breach of Contract

Plaintiff sues Bogan for breach of the Agreement. Amended Complaint, ¶¶ 39-45. Both Plaintiff and Bogan move for summary judgment in its or his favor. For the reasons explained above, Ohio law applies to this claim. “Under Ohio law, the elements of a breach of contract claim are: (1) the existence of a contract; (2) performance by the plaintiff; (3) breach by the defendant; and (4) damage or loss to the plaintiff as a result of the breach.” V & M Star Steel v. Centimark Corp., 678 F.3d 459, 465 (6th Cir.2012). Defendants argue that Bogan is entitled to summary judgment because (1) the Agreement is not enforceable; (2) even if it is enforceable, Bogan did not breach the Agreement; and (3) even if Bogan breached the Agreement, Plaintiff did not suffer any damages or loss as a result of that breach. Plaintiff contends -that the Court should find an enforceable agreement and that Bogan breached the Agreement as a matter of law. Plaintiff argues that, at most, the scope of damages is the only issue remaining for trial. The Court denies summary judgment to both parties, except as to unconscionability, because there are numerous genuine disputes of material fact on the element of breach, and because Plaintiff must file a more definite statement clarifying its theory of damages before the Court can reach this issue.

1. Existence of a Contract

a. Unconscionability

With regard to the first element, the existence of a contract, Defendants contend the Agreement is unenforceable because it is unconscionable. In Ohio, un-conscionability is a question of law and requires a two-prong showing: “ ‘(1) substantive unconscionability, i.e., unfair and unreasonable contract terms, and (2) procedural unconscionability, i.e., individualized circumstances surrounding each of the parties to a contract such that no voluntary meeting of the minds was possible.’ ” Jeffrey Mining Prods., L.P. v. Left Fork Mining Co., 143 Ohio App.3d 708, 758 N.E.2d 1173, 1181 (2001) (quoting Dorsey v. Contemporary Obstetrics & Gynecology, Inc., 113 Ohio App.3d 75, 680 N.E.2d 240, 243 (1996)); see also Scovill v. WSYX/ABC, 425 F.3d 1012, 1017 (6th Cir.2005). Both elements must be present to find a contract unconscionable. Scovill, 425 F.3d at 1017; Jeffrey Mining, 758 N.E.2d at 1181. Defendants, as the party asserting unconscionability, have the burden of proving that the Agreement is unconscionable. Wells Fargo Bank, N.A. v. Lee, 20 N.E.3d 1236, 1248 (Ohio Ct.App.2014). Because the Court concludes below, as a matter of law, that the Agreement was not procedurally unconscionable, the Court does not reach the issue of substantive unconsciona-bility. See Scovill, 425 F.3d at 1018.

For procedural unconscionability, “Ohio courts look to ‘factors bearing on the relative bargaining position of the contracting parties, including their age, education, intelligence, business acumen and experience, relative bargaining power, who drafted the contract, whether the terms were explained to the weaker party, and whether alterations in the printed terms were possible.’” Id. at 1017 (quoting Cross v. Carnes, 132 Ohio App.3d 157, 724 N.E.2d 828, 837 (1998)). Procedural un-eonseionability exists if there was such a vast disparity in the bargaining power that no voluntary meeting of the minds was possible. Id.; Bowie v. Clear Your Debt, LLC, 523 Fed.Appx. 315, 316 (6th Cir. 2013). “ ‘The crucial question is whether each party to the contract, considering his obvious education or lack of it, [had] a reasonable opportunity to understand the terms of the contract, or were the important terms hidden in a maze of fine print...?’” Morrison v. Circuit City Stores, Inc., 317 F.3d 646, 666 (6th Cir.2003) (en banc) (quoting Ohio Univ. Bd. of Trustees v. Smith, 132 Ohio App.3d 211, 724 N.E.2d 1155, 1161 (1999)) (internal quotation marks omitted) (alteration in original).

Defendants assert the Agreement is procedurally unconscionable because Bogan signed the Agreement after he began his employment with McGowan, “did not negotiate any of the terms of the Agreement,” and he “was instructed by Chris Longo that all McGowan & Statehouse employees must sign the Agreement.” Although Bogan was required to sign the Agreement, there is no evidence that he was required to sign the Agreement as then written. Ohio courts have consistently held that procedural unconscionability does not exist when there is undisputed evidence that a party had the opportunity to review the terms of the contract before signing and was sophisticated and educated enough to understand the terms. See Hedeen v. Autos Direct Online, Inc., 19 N.E.3d 957, 967 (Ohio Ct.App.2014). In Hedeen, the court explained,

There is no evidence in the record that [plaintiff], who is a second-grade teacher, was prevented from reading the contract before signing or that she was incapable of understanding the document based on some mental or physical impairment. Further, [defendant] emailed all of the purchase documents to her. As a result, there was no salesperson standing over her, directing her to quickly sign the documents. [Plaintiff] had time to read the documents she was signing. If a person can read and is not prevented from reading what he signs, he alone is responsible for reading what he signs.... [Plaintiff] contends she “was given the impression” that if she wanted to purchase the vehicle, she had to sign all of the documents that were emailed to her “without making any changes.” However, there is no evidence that she attempted to negotiate or alter any of the terms of the agreement. Based on foregoing, we find that she has not met her burden of establishing that the arbitration agreement was procedurally unconscionable.

Id. (internal citations and quotation marks omitted). In Bowie, the Sixth Circuit applying Ohio law stated: .

Boiled down to its essence, [plaintiffs] argument is this: She felt pressured to sign the contract because of the speed with which [defendant’s] employee explained the contract to her, and further, because the employee failed to mention the arbitration clause. But presumably, and as the district court found, [plaintiff], as a single-mother who runs a household and has her associate’s degree in nursing, was capable of asking for more time to read the contract and was capable of understanding the arbitration clause had she read it. Neither her failure to read the contract, nor the employee’s failure to mention the arbitration clause, renders the contract procedurally unconscionable.... Finally, this was not a situation where [plaintiff] had no choice but to accept the contract. She could have tried to negotiate the arbitration provision or she could have gone to another debt services company. She did neither.

Bowie, 523 Fed.Appx. at 316. In Vanyo v. Clear Channel Worldwide, the Ohio court explained,

Although the bargaining power may not have been equal in this case, we cannot say that [plaintiff] was a victim of procedural unconscionability. Mere inequali-' ty of bargaining power is insufficient to invalidate an otherwise enforceable arbitration agreement. Moreover, nothing in the record before us allows us to conclude that [plaintiff] was unaware of the impact of the agreement or that she was otherwise limited in understanding its impact. Indeed, the agreement itself contains an acknowledgment that [plaintiff] had “been given the opportunity to discuss this agreement with [her] private attorney.” Accordingly, on these facts, we find that there was no procedural unconscionability.

808 N.E.2d 482, 486 (Ohio Ct.App.2004) (citations omitted). See Morrison, 317 F.3d at 667 (“Although the bargaining power was not equal, and the contract was drafted by [the defendant] and was apparently not open to negotiation, we do not suppose that Ohio courts would find this highly educated plaintiff, who graduated from the Air Force Academy and held a master’s degree in administration, a victim of procedural unconscionability.”); Collins v. Click Camera & Video, Inc., 86 Ohio App.3d 826, 621 N.E.2d 1294, 1300 (1993) (“[Plaintiff] is a Harvard graduate, with extensive business and contracting experience. He admits he saw the limitations clause, but failed to read its contents. Therefore, he did not attempt to negotiate for less onerous terms, and the record does not indicate whether he could have obtained such terms had he tried. Assuming arguendo, that he could have not have bargained with [the defendant] to alter the terms of its limitations clause, this inability alone is insufficient to establish procedural unconscionability.”); Corp. Commc’n Servs. of Dayton, LLC v. MCI Commc’ns Servs., Inc., No. 3:08-CV-046, 2009 WL 3756274, at *22 (S.D.Ohio Nov. 9, 2009) (upholding commercial contract signed by the company’s owner because the owner “is well-educated and well-experienced in his profession, has experience in regularly dealing with commercial contracts, and had read and studied the contracts at issue here before signing them. Finally, he was under no compulsion to sign any of the agreements.”).

As in these Ohio eases holding no procedural unconscionability, there is no evidence that Bogan was unable to ask questions, negotiate terms, or have an attorney review the Agreement. Indeed, Plaintiff provides a copy of the email Lon-go sent Bogan:

As you know from our conversations with Line, all McGowan & Statehouse employees must sign a “Trade Secrets” agreement. Can you review the attached and sign?

Any questions, let us know.

Longo states he does not recall Bogan asking him any questions about the Agreement. Thus, while Bogan may have chosen not to question or negotiate any terms of the Agreement, the record reveals that he had the opportunity to do so.

Moreover, Bogan was sophisticated. When he signed the Agreement in 2006, he had been working as a wholesale insurance broker for nearly thirty years and recently had started with McGowan as the company’s Dallas branch manager. Given the nature of Bogan’s work, management skills, and his extensive experience in the insurance industry, he possessed the necessary training, knowledge, and sophistication to understand the Agreement and to ask questions. Defendants have failed to meet their burden and raise a genuine fact dispute regarding procedural unconsciona-bility. The Court therefore concludes, as a matter of law, that the Agreement was not procedurally unconscionable and is generally enforceable.

b. Enforceability of Attorneys’ Fees Provision

Defendants also argue that Paragraph 27 of the Agreement is unenforceable and that McGowan cannot recover attorneys’ fees on its breach of contract claim. Defendants’ Motion, at 31.’ Defendants contend (1) Paragraph 27, the Agreement’s attorneys’ fees provision, is unconscionable and (2) the provision is an unenforceable penalty. Defendants do not offer any additional evidence or arguments as to why this particular provision is unconscionable. For the reasons explained above, the Agreement, including the attorneys’ fees provision, is not procedurally unconscionable, and thus, under Ohio law, the Agreement, including the attorneys’ fees provision, is not unenforceable on this basis.

Regarding Defendants’ second argument, until recently Ohio courts and the Sixth Circuit applying Ohio law precluded contractual recovery of attorneys’ fees unless the attorneys’ fees provision was specifically negotiated. See Big Lots Stores, Inc. v. Luv N’ Care, Ltd., 302 Fed.Appx. 423, 426 (6th Cir.2008) (and cases cited therein). Relying on this line of cases, Defendants contend the attorneys’ fees provision was not specifically negotiated here, and thus is unenforceable. See Defendants’s Reply, at 24 & n. 10. Very recently the Sixth Circuit abrogated this line of cases. See Allied Indus. Scrap, Inc. v. OmniSource Corp., 776 F.3d 452 (6th Cir.2015), abrogating Scotts Co. v. Cent. Garden & Pet Co., 403 F.3d 781 (6th Cir.2005). In Allied Industrial Scrap, the Sixth Circuit held that unilateral or one-sided fee shifting provisions, such as the one at issue here, are generally enforceable under Ohio law, based on Wilborn v. Bank One Corp., 121 Ohio St.3d 546, 906 N.E.2d 396 (2009), a case in which the Ohio Supreme Court upheld a one-sided, fee-shifting provision in a bank’s contract for a home equity loan. Id. at 453. In Wilborn, the Ohio Supreme Court reasoned that absent any evidence of uncon-scionability, duress, or public policy to the contrary, “agreements to pay another’s attorney fees are generally ‘enforceable and not void as against public policy so long as the fees awarded are fair, just and reasonable as determined by the trial court upon full consideration of all of the circumstances of the case.’ ” Wilborn, 906 N.E.2d at 400-01 (quoting Nottingdale Homeowners’ Ass’n, Inc. v. Darby, 33 Ohio St.3d 32, 514 N.E.2d 702, 702 (1987) (syllabus)). Thus, under current Ohio law, one-sided fee-shifting provisions are generally enforceable subject to limited exceptions not applicable here. See id.; Allied Indus. Scrap, 776 F.3d at 453. Accordingly, should Plaintiff prevail at trial on its breach of contract claim, Plaintiff would be entitled under Paragraph 27 to recover fair, just, and reasonable attorneys’ fees.

c. Enforceability of Paragraph 6

Finally, Defendants argue that the entire Agreement is unenforceable because Paragraph 6 is an unenforceable non-competition clause. Defendants cite only Texas cases. To the extent Defendants’ argument is based on Texas law, this argument is rejected because Ohio law applies to Plaintiffs breach of contract claim.

The Court, for the sake of completeness, considers Defendants’ argument as if asserted under Ohio law. Under that law, “a non-compete clause’s enforceability is a matter of law for the court.” Chi. Title Ins. Corp. v. Magnuson, 487 F.3d 985, 990 (6th Cir.2007).

“[A] noncompete covenant is enforceable to the extent it is reasonable.” FirstEnergy Solutions Corp. v. Flerick, 521 Fed.Appx. 521, 525 (6th Cir.2013) (citing Raimonde v. Van Vlerah, 42 Ohio St.2d 21, 325 N.E.2d 544, 544 (1975) (syllabus)). The Ohio Supreme Court has held that “[a] covenant restraining an employee from competing with his former employer upon termination of employment is reasonable if the restraint is no greater than is required for the protection of the employer, does not impose undue hardship on the employee, and is not injurious to the public.” Raimonde, 325 N.E.2d at 545 (syllabus); accord Chi. Title Ins. Corp., 487 F.3d at 991.

To determine the reasonableness of a non-compete covenant, Ohio courts consider:

Whether the covenant imposes temporal and spatial limitations, whether the employee had contact with customers, whether the employee possesses confidential information or trade secrets, whether the covenant bars only unfair competition, whether the covenant stifles the employee’s inherent skill and expertise, whether the benefit to the employer is disproportionate to the employee’s detriment, whether the covenant destroys the employee’s sole means of support, whether the employee’s talent was developed during the employment, and whether the forbidden employment is merely incidental to the main employment.

Basicomputer Corp. v. Scott, 973 F.2d 507, 512 (6th Cir.1992) (citing Raimonde, 325 N.E.2d at 547); accord MB TotalCare Servs., Inc. v. Mattimoe, 648 F.Supp.2d 956, 963 (N.D.Ohio 2009). “In determining the validity of a covenant or agreement in restraint of trade, each case must be decided on its own facts.” Raimonde, 325 N.E.2d at 547; accord Chi. Title Ins. Corp., 487 F.3d at 991. The burden is on the party seeking to enforce the covenant to provide clear and convincing evidence that the covenant is reasonable. Chi. Title Ins. Corp., 487 F.3d at 991; Century Bus. Servs., Inc. v. Barton, 197 Ohio App.3d 352, 967 N.E.2d 782, 795 (2011); Levine v. Beckman, 48 Ohio App.3d 24, 548 N.E.2d 267, 270 (1988).

Finally, Ohio law empowers courts to modify or amend non-compete covenants to achieve reasonable results. Chi. Title Ins. Corp., 487 F.3d at 991; Raimonde, 325 N.E.2d at 547. Ohio law also recognizes that an unenforceable provision may be severed from an otherwise enforceable contract if severance would be consistent with the intent of the parties. See Ignazio v. Clear Channel Broad., Inc., 113 Ohio St.3d 276, 865 N.E.2d 18, 20 (2007); Morrison, 317 F.3d at 674-75; Toledo Police Patrolmen’s Ass’n, Local 10, IUPA v. Toledo, 94 Ohio App.3d 734, 641 N.E.2d 799, 803 (1994).

The disputed “non-compete” clause, Paragraph 6 of the Agreementprohibits Bogan’s use of McGowan’s trade secrets, confidential information, or proprietary information to compete with McGowan. See Agreement, ¶ 6 (quoted above). Paragraph 5 of the Agreement, the “Non-Disclosure” covenant, also restricts Bogan’s use of trade secrets, confidential information, and proprietary information. When Paragraphs 5 and 6 are read together, it is clear that the primary objective of the Agreement is to prevent a McGowan or affiliates’ employee’s use of his employer’s confidential information, trade secrets, and proprietary information. Paragraph 6 does little more than Paragraph 5. Each seek to protect misuse of McGowan entities’ confidential, trade secret, and proprietary information.

Under Ohio law, “[a]n employee possessed of his former employer’s trade secrets ‘[has] the right to take employment in a competitive business, and to use his knowledge (other than trade secrets) and experience, for the benefit of the new employer.’ ” Hydrofarm, Inc. v. Orendorff, 180 Ohio App.3d 339, 905 N.E.2d 658, 663 (2008) (quoting B.F. Goodrich v. Wohlgemuth, 117 Ohio App. 493, 192 N.E.2d 99, 105 (1963)) (second alteration in original). Ohio courts, however, protect an employer against a former employee’s potential misuse of trade secrets through the “inevitable use” or “inevitable disclosure” doctrine. That doctrine provides “a threat of harm warranting injunc-tive relief can be shown by facts establishing that an employee with detailed and comprehensive knowledge of an employer’s trade secrets and confidential information has begun employment with a competitor of the former employer in a position that is substantially similar to the position held during the former employment.” Patio Enclosures, Inc. v. Herbst, 39 Fed.Appx. 964, 969 (6th Cir.2002); see also Gamble Co. v. Stoneham, 140 Ohio App.3d 260, 747 N.E.2d 268, 279 (2000); Devicor Med. Products, Inc. v. Reed, No. 1:11CV645, 2013 WL 1315037, at *18 (S.D.Ohio Mar. 29, 2013) (Dlott, J.); Exal Corp. v. Roeslein & Assocs., Inc., No. 4:12cv1830, 2013 WL 6843022, at *4 (N.D.Ohio Dec. 27, 2013) (Pearson, J.); MP TotalCare Servs., 648 F.Supp.2d at 968-69. Given these strongly embedded protections under Ohio law, the Agreement’s non-compete covenant is reasonable and enforceable under Ohio law to the extent Paragraph 6 is limited to an employee’s use of trade secret, proprietary, and confidential information.

Defendants also contend Paragraph 6 is unenforceable because it incorporates an overly broad definition of “trade secrets” and “confidential information.” This argument about the breadth of the Agreement’s definition of trade secret, proprietary, and confidential information raises a genuine fact dispute between the parties regarding whether the information actually at issue in this case constitutes protectable information. Once the jury determines at trial what information, if any, was improperly used by Bogan, then the Court will assess whether that information qualifies as a trade secret, or proprietary or confidential information. Furthermore, even if the Court were to find that Paragraph 6 was unreasonable to the extent it covers conduct or information beyond what is protected by Ohio trade secret law—an issue the Court does not reach here—the Court retains the power to either modify Paragraph 6 to make it reasonable and enforceable or to sever that paragraph, and thus render the Agreement enforceable. Defendants’ arguments regarding Paragraph 6, therefore, do not provide grounds for finding the entire Agreement unenforceable.

Defendants’ contention that a valid contract does not exist between Bogan and Plaintiff is rejected.

2. Breach

Plaintiff contends that Bogan breached Paragraphs 5, 6, 7, and 36 of the Agreement. The parties raise highly fact-dependent arguments regarding whether Bogan breached any of the provisions of the Agreement. Accordingly, the Court con-eludes that summary judgment is not appropriate for either party on this element of Plaintiffs contract claim.

a. Paragraphs 5 and 6

There is a genuine dispute of material fact regarding whether any of Plaintiffs information rises to the level of trade secret, confidential, or proprietary information. There also is a genuine fact dispute whether Bogan’s use of this information constitutes a violation of Paragraph 5, which restricts an employee’s ability to disclose McGowan’s trade secret, confidential, and proprietary information, or a violation of Paragraph 6, which prohibits an employee from using McGowan’s trade secrets, confidential information, and proprietary information to compete with McGowan. See Agreement, ¶¶ 5, 6.

Plaintiff argues Bogan breached Paragraphs 5 and 6 of the Agreement by using Plaintiffs confidential information to send emails soliciting business from Plaintiffs customers and brokers, to divert business and quotes away from Plaintiff, and to build a book of business for his new employer, UMI. Plaintiffs Reply, at 3; Plaintiffs Motion, at 23. Plaintiff directs the Court to evidence such as emails from Bogan, the “Production Analysis” for UMI from January 1, 2011 to September 30, 2013, and Defendants’ responses to Plaintiffs requests for admissions. Defendants counter that Bogan used his prior contacts and public information, not any of McGowan’s confidential information or trade secrets to send emails, and that Bo-gan did not direct any viable business away from McGowan. Defendants also dispute whether any business Bogan actually wrote at UMI was derived from McGowan confidential information. The parties’ arguments regarding whether Bo-gan breached Paragraphs 5 and 6 of the agreement are replete with material and genuine fact disputes. Summary judgment is denied for both parties on this issue.

b. Paragraph 7 of the Agreement

Plaintiff also contends Bogan breached Paragraph 7, the “Non-Disparagement” provision of the Agreement, by sending emails to McGowan’s contacts and brokers that contained “disparaging comments.” Plaintiffs Motion, at 24. The specific emails Plaintiff points to contain statements such as “it’s not clear right now if McGowan will close the Dallas office or keep a downsized skeleton crew,” and “I’ve told them [McGowan] that the unique relationship I’ve had with wholesalers like yourselves might just evaporate upon my leaving.”

Defendants assert that Bogan’s statements do not rise to the level of a “disparaging comment” because the emails “correctly expressed concern about the future of McGowan” and were either sent by Bogan at Longo’s instruction or were sent by Bogan to maintain his longstanding relationships with clients. The definition of a “disparaging comment” is subjective and requires the trier of fact to determine if the comment “would cause” a third party “to think poorly of or negatively about [McGowan], whether or not such statement is true or false.” See Agreement, ¶ 28(b). There is a genuiné dispute of material fact regarding whether Bogan made a “disparaging comment” in violation of Paragraph 7. Neither party is entitled to summary judgment on this issue.

c. Paragraph 36 of the Agreement

Finally, Plaintiff contends that Bogan breached Paragraph 36 by failing to devote “100% of his business time” to McGowan. Plaintiffs Motion, at 24-25. Bogan’s last day of employment with McGowan was August 5, 2011. Plaintiff has provided a detailed breakdown of all the acts Bogan allegedly committed for his personal benefit or on behalf of UMI or SBI during his final weeks of employment with McGowan, including allegedly soliciting business for UMI or SBI, diverting business away from McGowan, and using McGowan resources to set up his new business at UMI. Plaintiffs Reply, at 7-9; Plaintiffs Motion, at 24-25. The majority of evidence supporting Plaintiffs arguments is in the form of emails Bogan sent or received. Additionally, Plaintiff submits deposition testimony from Bogan discussing meetings he attended, apparently not on behalf of McGowan, on July 26 and 27, 2011, a “Search for Issuing Carrier Agreement and Binding Authority Universal Managers, Inc.” that Bogan apparently signed on behalf of UMI on July 22, 2011, and employment forms suggesting Bogan began working for SBI in July 2011.

While this evidence is weighty, Defendants point to genuine fact issues pertaining to many of these documents. For instance, most of the emails in which Bo-gan allegedly “solicits” clients are challenged by Defendants through Bogan’s testimony that the emails were sent at Longo’s direction. Bogan Deck, ¶ 14. Bo-gan also asserts that the business he diverted from McGowan could never have been written by the company. Id., ¶ 18. Defendants further dispute when Bogan began his employment with UMI. Furthermore, Defendants argue that time Bo-gan may not have devoted to McGowan was minimal and was insufficient to amount to a breach of the Agreement. This evidence and conflicting arguments present credibility issues and require subjective judgments best resolved at trial. The Court concludes that summary judgment is not appropriate for either party on the issue of whether or not Bogan breached Paragraph 36 of the Agreement.

3. Damages

Defendants contend Plaintiff has provided no evidence of any damages suffered as a result of Bogan’s alleged misconduct. Defendants’ Motion, at 21-24; Defendants’ Reply, at 13-15. Plaintiff does not clarify under what legal theory it is pursuing damages, and has not clearly articulated what damages resulted from any specific alleged breach of the Agreement, both of which Plaintiff must do at trial. Defendants, however, have failed to establish entitlement to summary judgment under Ohio damages law. The Court declines to grant summary judgment for either party.

Plaintiffs damages arguments relate to business Bogan allegedly diverted from McGowan to UMI and/or SBI, revenue McGowan allegedly lost due to Bogan, and business UMI allegedly gained after Bogan began working there. It is unclear whether Plaintiff simply seeks lost profits damages or intends some other measure of damages. In Ohio, “the nonbreaching party [to a contract] is entitled to a recovery of lost profits as consequential damages if he is able to prove: ‘(1) profits were within the contemplation of the parties at the time the contract was made, (2) the loss of profits is the probable result of the breach of contract, and (3) the profits are not remote and speculative and may be shown with reasonable certainty.’ ” Rosier v. DeRosa, 169 Ohio App.3d 150, 862 N.E.2d 159, 165 (2006) (quoting Charles R. Combs Trucking, Inc. v. Int’l Harvester Co., 12 Ohio St.3d 241, 466 N.E.2d 883, 887 (1984)); accord Kehoe Component Sales Inc. v. Best Lighting Products, Inc., 933 F.Supp.2d 974, 1007, n. 33 (S.D.Ohio 2013). For the third element, “both the existence and the amount of lost profits must be demonstrated with ‘reasonable certainty.’ ” AGF, Inc. v. Great Lakes Heat Treating, Co., 51 Ohio St.3d 177, 555 N.E.2d 634, 640 (1990); accord City of Gahanna v. Eastgate Props., Inc., 36 Ohio St.3d 65, 521 N.E.2d 814, 818 (1988). “[Damages are not awarded merely on a plaintiffs assertion ‘that it would have made a particular amount of profits, but [the plaintiff] must prove lost profits with calculations based on facts.’ ” Ask Chems., LP v. Computer Packages, Inc., 593 Fed.Appx. 506, 511 (6th Cir.2014) (second alteration in original) (quoting UZ Engineered Products Co. v. Midwest Motor Supply Co., Inc., 147 Ohio App.3d 382, 770 N.E.2d 1068, 1084 (2001)); accord Gahanna, 521 N.E.2d at 818; Endersby v. Schneppe, 73 Ohio App.3d 212, 596 N.E.2d 1081, 1084 (1991). “[Demonstrating lost profits to a reasonable certainty requires the use of detailed evidence, for example, ‘expert testimony, economic and financial data, market surveys and analyses, business records of similar enterprises, and the like.’ ” Ask Chems., LP, 593 Fed.Appx. at 511 (quoting AGF, Inc., 555 N.E.2d at 640); see also Endersby, 596 N.E.2d at 1083 (“Unless the figure is substantiated by calculations based on facts available or in evidence, the courts will properly reject it as speculative and uncertain.” (citations and quotation marks omitted)).

Plaintiff asserts McGowan suffered “a decrease in the dollar amounts of business written with certain brokers who Bogan improperly solicited with his disparaging emails.” Plaintiff, however, does not explain how much business McGowan allegedly lost due to Bogan’s breaches of the Agreement. Plaintiff proffers evidence it argues shows that Bogan used McGowan trade secrets (customer lists) to “build a book of business” at UMI worth $2,246,909.46. Defendants raise a genuine dispute of fact by countering with evidence that Bogan only wrote five pieces of business while an employee of UMI, and four of these were referred by SBI. Because of these and other issues regarding admissibility of the evidence on which Plaintiff relies to establish damages, the Court cannot determine as a matter of law the sufficiency of proof of Plaintiffs damages.

Plaintiff is required to file a more definite statement clarifying its damages theories and identifying the supporting evidence produced through discovery or initial disclosures as timely supplemented by the parties. Defendants may challenge this proof of damages through a new summary judgment motion.

To conclude on Plaintiffs breach of contract claim, the Court decides as a matter of law that the Agreement is not unconscionable and is generally enforceable as explained above. But, there are numerous genuine disputes of material fact on the element of breach precluding summary judgment for Plaintiff or Bogan. Summary judgment is also denied for both parties on the issue of damages because the record is inadequate to decide the issue or the existence of recoverable damages under Ohio law.

C. Misappropriation of Trade Secrets

Plaintiff sues all Defendants for misappropriation of trade secrets. Amended Complaint, ¶¶ 30-38. In Ohio, misappropriation of trade secrets is a statutory cause of action under the Ohio Uniform Trade Secrets Act (“OUTSA”). See Ohio Rev.Code §§ 1333.61-1333.69; Office Depot, Inc. v. Impact Office Products, LLC, 821 F.Supp.2d 912, 918 (N.D.Ohio 2011). In Texas, misappropriation of trade secrets is a common law tort claim. See Trilogy Software, Inc. v. Callidus Software, Inc., 143 S.W.3d 452, 464 (Tex.App.Austin 2004, pet. denied); see also Tewari De-Ox Sys., Inc. v. Mountain States/Rosen, L.L.C., 637 F.3d 604, 610 n. 2 (5th Cir.2011); Computer Assocs. Int’l, Inc. v. Altai Inc., 918 S.W.2d 453, 458 (Tex.1996) (both noting that Texas has not adopted the Uniform Trade Secrets Act).

Plaintiff only brings this cause of action as an Ohio statutory claim under OUTSA, and has not alleged a Texas tort claim in its Amended Complaint, the operative pleading for Plaintiff at this time. Plaintiff, in its Amended Complaint, filed after the case was transferred to Texas and after Pla