Synthes, Inc. v. Emerge Medical, Inc.

MEMORANDUM

BUCKWALTER, District Judge.

TABLE OF CONTENTS FOR CROSS-MOTIONS FOR SUMMARY JUDGMENT TO LIABILITY

I.STATEMENT OF FACTS.

A. Persons Relevant to the Suit.

1. The Parties.

2. Other Relevant Individuals.

B. Background of the Key Players’ Employment With Synthes

1. Defendant Marotta’s Employment With Synthes.

2. Defendant Brown’s Employment With Synthes.

3. Powell’s Employment With Synthes.

4. Trafka’s Employment with Synthes and Magnum Tool.

C. Written Obligations of the Parties and Other Individuals ..

1. Synthes Written Obligations..

a. Contractual Obligations.

b. Employment Policies and Obligations.

2. Emerge’s Written Contracts and Policies.

3. Vendors’ Written Contractual Obligations to Synthes .

4. SIMS and Customers’ Written Contractual Obligations to Synthes

D. The Formation of Emerge Prior to April 15, 2010.

1. Brief Background of Emerge.

2. Detailed Timeline of Emerge-Related Activities Prior to April 15, 2010.

3. Emerge’s Business Plans and Investor Materials (Pre-April 2010)

a. The Private Placement Memorandum.

b. Investor Presentations.

c. Additional Statements Regarding Emerge’s Business Model

4. of Investors and

5. Early Design and Development of Emerge Product.

E. Use of Products and Information.

*629 1. Acquisition and Use of Synthes Product. 05 CR CR

2. Acquisition, Use, and Disclosure of Synthes’s Confidential and Proprietary Information. 05 CR CR

a. Information Related to Synthes’s Manufacturing Costs _ 05 CR CR

b. Information Related to Synthes’ External Fixation and LCP Products. 05 CR 05

c. Information Related to Synthes’s Critical Features, Dimensions, and Tolerances. 05 CR 05

d. Information Related to Synthes’s Engineering Specifications 05 CR -3

e. Information Related to Synthes’s Cortical and Cancellous Screws. .657

f. Information Related to Synthes’s Usage Data in Emerge’s Early Accounts. 00 LO to

g. Information Related to Synthes’s Cannulated Screw Comparison Chart. 00 lO to

h. Synthes Documents Marotta Emailed to His Personal Email Address. 00 LO CO

i. Marotta’s & Powell’s Retention of Synthes’s Emails. 05 iO co

j. Information Related to Synthes’s Strategic Business

Obtains FDA Clearance. lO CO

Emerge’s Pilot Customers.. CO CO

1. Banner Health. CO CO

2. AOSH/USPI. CO CO

3. Catholic Healthcare West. CO co

4. System-Wide Sales and Early Targets. CO CO

Emerge’s Sales Process, Strategy, Implementation, and Commingling W 03 to co

I. Cardinal Health. "ÑP CO co

J. 'Procedural History. lO CO co

STANDARD OF REVIEW . II. LO CO co

DISCUSSION.. III. co to

A. Claim Against Marotta for Breach of Fiduciary Duty (Count I) co CO

1. Defendant’s Motion for Partial Summary Judgment on Breach of Fiduciary Duty.'. 00 CO CO

2. Plaintiffs’ Motion for Summary Judgment on Breach of Fiduciary Duty. 05 o

B. Claim of Aiding and Abetting Breach of Fiduciary Duty Against Emerge. 05 £

C. Claim Against Marotta for Breach of Contract Under the Non-competition and Non-Disclosure Agreements (Count II). 3 00

1. The Assignment Provision of the Non-Disclosure Agreement. 3 00

2. The Non-Competition and Non-Solicitation Provisions of the RM NCA. a. Breach of the Non-Competition Provision. 05 05 00 00 ÜUJ5.

b. Breach of the Non-Solicitation of Customers Provision... 05 00 CD

c. Breach of the Non-Solicitation of Employees Provision .. 05 co M

3. Sales Consultant Non-Competition Provision. 05 to CO

4. Return of PropertyFrovision and Confidentiality and Non-

Disclosure Provisions in the RM NCA and NDA. 05 CO CO

a. Small Fragment Set. 05 CO CO

b. Synthes Product in Marotta’s Garage. —d O ) — I

c. Synthes Emails. -vj O co

D. Misappropriation... -^3 O iffe

1. Whether the Items at Issue Constituted Trade Secrets. O CR

a. Synthes Information Regarding Manufacturing Costs and

Usage Data.•_ 705

*630 b. Product Design Information.707

2. Whether Emerge Misappropriated Synthes’s Trade Secrets.710

a. Information Regarding Manufacturing Costs and Usage Data.710

b. Synthes Product Drawings and Information Related to External Fixation Products .712

c. Synthes Product Drawings and Information Related to Critical Features, Dimensions, and Tolerances for Screws Emerge Developed and Screws Emerge Identified as Additional Product Offerings.712

d. Synthes Engineering Specifications and Information Related to Products Emerge Designed and Identified as Additional Product Offerings.713

e. Drawings and Information Related to Synthes Cortical and Cancellous Screws and Product Emerge Identified as • Additional Product Offerings.■.714

f. Strategic Business Planning Information Related to Companies Affiliated with Prospective Emerge Investors and Advisors.715

3. Conclusion as to Misappropriation .715

False Advertising Under the Lanham Act.715 E.

Computer Fraud and Abuse Act.718 F.

Trespass to Chattels.721 G.

Fraud.•.723

Tortious Interference With Contract.727 I.

1. Tortious Interference with Marotta’s Contracts With Synthes.727

a. Whether Emerge Had Knowledge of Marotta’s Contractual Agreements with Synthes.728

b. Whether Emerge Did Anything to Induce Marotta to Breach Either His NDA, His RM NCA, or His SC NCA With Synthes .,.729

2. Tortious Interference with Powell’s Non-Compete Agreement With

3. Tortious Interference With Brown’s Agreements With Synthes “VI CO co

4. Tortious Interference With Synthes’s Contractual Relationships

With Any of Its Customers or Vendors. CO

a. Tortious Interference With Vendors. CO ^

b. Tortious Interference with Customers. CO oi

5. Marotta’s Tortious Interference With Synthes’s Contractual Relations With Other Synthes Employees. CO or

Civil Conspiracy . *“■3 to cn

IV. CONCLUSION. .737

Currently pending before the Court are the Cross-motions for Summary Judgment of Plaintiffs Synthes, Inc., Synthes USA-HQ, Inc., Synthes USA, LLC, Synthes USA Sales, LLC, and Synthes USA Products, LLC (collectively “Synthes”) and Defendants Emerge Medical, Inc., John P. Marotta, and Charles Q. Powell (collectively “Defendants”). For the following reasons, Synthes’s Motion is granted in part and denied in part and Defendants’ Motion is granted in part and denied in part.

I. STATEMENT OF FACTS 1

The factual history of this case, while not particularly long in a temporal sense, *631 contains numerous discrete events and actions that give rise to the multitude of claims at issue. As the parties have already engaged in lengthy motion practice, as well as a preliminary injunction hearing, the general facts are well-known to both the parties and the Court. While the Court declines to recite every fact set forth by the parties, the Court will engage in a somewhat detailed summafy in order to encompass the facts pertinent to resolution of the motions at issue. 2

A. Persons Relevant to the Suit 1. The Parties

Synthes, Inc. is a Delaware corporation with its principal place of business in' Pennsylvania, and is the parent company of the other Plaintiffs, which are also Delaware entities with their principal places of business in Pennsylvania. (Plaintiffs’ Statement of Undisputed Facts '(“PSUF”) ¶ 1; Defendants’ Response to Plaintiffs’ Statement (“DRPS”) ¶ 1.) Synthes has been described as a global leader in the highly competitive orthopedic device market. (PSUF ¶ 2;. DRPS ¶ 2.) Its sales and marketing plan depends exclusively upon the preferences of orthopedic surgeons to influence the purchasing decisions of the hospitals and surgical centers where orthopedic surgeons practice. (PSUF ¶ 5;DRPS ¶ 5.)

Emerge- Medical, Inc. (“Emerge”) is a Colorado corporation formed on January 13, 2010, under the name Emerge Surgical, Inc. (PSUF ¶ 7; DRPS ¶ 7.) On June 23, 2010, Emerge Surgical, Inc. officially changed its name to Emerge Medical, Inc. (PSUF ¶ 8; DRPS ¶ 8.) Emerge competes with Synthes and was formed to produce and sell Generic Device Fixation Hardware “similar, but not identical to” that which Synthes also produces and sells. (PSUF ¶¶ 9-10; DRPS ¶¶ 9-10.) According to Emerge, it has “devised a new approach to the sales of [drill bits, guide wires, and screws] providing the American public with a like-numbered product that is similar to” drill bits, guide wires, and cannulat-ed screws sold by Synthes. (PSUF ¶ 11; DRPS ¶ 11.) As of July 2012, Emerge sold only “drill bits, guide wires, and screws.” (PSUF ¶ 12; DRPS ¶ Í2.) Emerge’s drill bits, guide wires, and screws may be “used to hold Synthes[’] sophisticated implants in place.” (Plaintiffs’ Appendix (“Pis.’ Appx.”) 3 2, Emerge Answer to Am. Compl. ¶ 156; PSUF ¶ 13; DRPS ¶ 13.) Currently, Cardinal Health, Inc. (“Cardinal Health”) serves as the exclusive distributor of Emerge products. (PSUF ¶ 15; DRPS ¶ 15.)

Defendant John P. Marotta is a former Synthes Sales Consultant and Regional *632 Manager in Synthes’s Trauma Division. (PSUF ¶ 16; DRPS ¶ 16.) Marotta was a founding member of Emerge and currently serves as Emerge’s Chief Executive Officer, President, and Director. (PSUF ¶ 17; DRPS ¶ 17.) As Chief Executive Officer (“CEO”) of Emerge, Marotta has been responsible for operations and all aspects of Emerge’s business, including product development, managing timelines, sales and marketing strategies, oversight of the development of sales and sales growth within the business, manufacturing, quality systems, financial responsibility for'all aspects of the operation, and investor relations. (PSUF ¶ 18; DRPS ¶ 18.)

Zachary Stassen was a founding member of Emerge and was Emerge’s Chief Operating Officer and Director until July or August 2010, when he became Chief Financial Officer. (PSUF ¶¶ 19-20; DRPS ¶ 19-20.) On November 4, 2011, Stassen resigned as an officer and employee of Emerge. (PSUF ¶ 21; DRPS ¶ 21.) Nonetheless, Stassen remains a shareholder of Emerge. (PSUF ¶ 25; DRPS ¶ 25.) Although originally a named Defendant in this action, Synthes and Stassen reached a settlement and the Court dismissed him from this action, without prejudice, on January 23, 2013. (PSUF ¶¶ 28-29; DRPS ¶¶ 28-29.)

Eric Brown is a former Area Vice President of Sales for Synthes Trauma. (PSUF ¶ 30; DRPS ¶ 30.) At some point during his employment with Synthes, Marotta reported directly to Brown. (PSUF ¶ 31; DRPS ¶ 31.) In 2009, during Brown’s employment with Synthes, Brown was contemplating a new business that involved providing consulting services to distributors and start-up companies that sold orthopedic medical devices, and had hired Stassen as a business consultant in connection with that idea. (PSUF ¶ 32; DRPS ¶ 32.) Following the introduction of Mar-otta to Stassen in or about the summer of 2009, Brown, Marotta, and Stassen began to discuss other possible means for a new business, including the idea to sell generic medical device commodities. (PSUF ¶ 34; DRPS ¶ 34; Pis.’ Appx. 26, at Interrog. Resp. No. 2.) Brown, however, was focused on a sales force model rather than the business model envisioned by Marotta and Powell. (Pis.’ Appx. 19, Dep. of Zachary Stassen (“Stassen Dep.”), 228:16-229:3, July 22, 2011.) Nonetheless, Brown remained involved in discussions with Marot-ta and Stassen regarding the formation of a new company. (PSUF ¶ 36; DRPS ¶ 36.) By the time of incorporation, however, it was determined that Brown would have no place in either the formation or management of Emerge because Stassen and Marotta believed that Brown’s Non-Compete Agreement would be a barrier to his participation. (PSUF ¶¶ 37-38; DRPS ¶¶ 37-38; Pis.’ Appx. 3, Dep. of John Mar-otta (“Marotta Dep.”), 151:24-152:24, July 5, 2011.) 4 Although Brown was originally sued in connection with this lawsuit, he was dismissed without prejudice on January 23, 2013, as part of a settlement between him and Synthes. (PSUF ¶¶ 40-41; DRPS ¶¶ 40-41.) In that regard, Brown signed a settlement agreement which purports to assign to Synthes any and all interests that he held in Emerge or in certain intellectual property associated with Emerge. (PSUF ¶ 41; DRPS ¶41; Pis.’ Appx. 27-28.)

Charles (Chaun) Q. Powell is a former Synthes Sales Consultant for Synthes Trauma who, during Marotta’s tenure as Regional Manager of the Rocky Mountain *633 Region, reported directly to"' Marotta. (PSUF ¶ 42; DRPS ¶42.) On March 15, 2010, Powell resigned from Synthes to work for Sonoma. Orthopedic Products, Inc. (PSUF ¶ 43; DRPS ¶43.) In the summer of 2010, Powell agreed to an August 1, 2010 start date with Emerge, after which he would work on a part-time basis in a consulting position. (PSUF ¶ 44; DRPS ¶ 44.) On August 30, 2010, Powell left Sonoma Orthopedic Products, Inc. and, the following day, joined Emerge as Director of U.S. Sales. (PSUF ¶44; DRPS ¶ 44.) In connection with his employment, Powell executed a Revised Offer of Employment letter with Emerge dated August 1, 2010, signed by Marotta as Chief Executive Officer of Emerge. (PSUF ¶¶ 45-46; DRPS ¶¶ 45-46.) In this letter, Emerge stated that “we understand that you may be subject to certain confidentiality and competition restrictions under a confidentiality and non-compete agreement with one or more former employers (each, a ‘Non-Competition Agreement’).” (Pis.’ Appx. 32; PSUF ¶ 47; DRPS ¶ 47.) In addition, Powell “acknowledge[d] that John P. Marotta, Chief Executive Officer, [was] also bound by the provisions of a similar agreement with his prior employer (the ‘Marotta Agreement’)” and “agree[d] to abide by the terms of any Non-Compete Agreement and will not do anything in [his] capacity as an employee of the Company to breach any Non-Compete Agreement nor to cause any action to be taken against the Complaint [sic] or Mr. Marotta for breach of the Marotta Agreement.” (Pis.’ Appx. 32; PSUF ¶48; DRPS ¶ 48.) Around January 1, 2012, Powell became Emerge’s Vice President of U.S. Sales. (PSUF ¶49; DRPS ¶ 49.) Since beginning his employment, Powell has reported directly to Marotta. • (PSUF ¶ 50; DRPS ¶ 50.) Powell testified that he was responsible for overseeing all aspects of marketing the majority of Emerge’s products; strategic planning; identifying potential products for development; the creation, review, and approval of Emerge’s marketing materials generally; performing on-site implementation of Emerge products; generating price quotations for Emerge products; website development; providing suggestions on products Emerge was in the process of making; and helping Cardinal Health understand the sales end of Emerge’s business. (PSUF ¶ 51; DRPS ¶ 51; Pis.’ Appx. 31, Dep. of Charles Powell (“Powell Dep.”), 63:8-66:10, 71:1-72:1, 76:1-19, 91:20-92:17, June 10, 2013.)

2. Other Relevant Individuals

Marcy Slone served as Emerge’s Vice President of Operations from the summer of 2010 until her termination in January 2011. (PSUF ¶ 52; DRPS ¶ 52.) In that role, her responsibilities included overseeing the operations of the company, supplier management responsibilities, some inventory management responsibilities, day-to-day management responsibilities, and some interaction with Orchid on the design of Emerge’s products. (PSUF ¶ 53; DRPS ¶ 53.) According to Marotta, Slone had intimate knowledge of the design and development efforts of Emerge’s “initial phase products,” including Emerge’s can-nulated screws, drill bits, and guide wires. (PSUF ¶ 54; DRPS ¶ 54; Pis.’ Appx. 36, Marotta Dep., 654:13-55:8, July 6, 2011.)

Victoria Trafka was employed by Synthes in 1998 as a manufacturing engineer at Synthes’s Monument facility. (PSUF ¶ 58; DRPS ¶ 58.) In 2009, Mar-otta contacted Trafka regarding potential assistance with Emerge. (PSUF ¶ 59; DRPS ¶ 59.) Thereafter, in March 2010, Trafka began working for Emerge as a part-time consultant to assist Emerge in developing product concepts. (PSUF ¶ 60; DRPS ¶ 60.) During the period of time for which she served as a part-time engi *634 neering contractor for Emerge, Trafka’s position included contract design work paid on an hourly basis. (PSUF ¶ 61; DRPS ¶ 61.) In this role, she referred to herself as “VP Engineering” for “Emerge Medical, Inc.” (PSUF ¶62; DRPS ¶ 62.) As of March 2011, Trafka was a part-time, salaried employee of Emerge and, at times, worked over forty hours in a week. (PSUF ¶ 63; DRPS ¶ 63.) On August 1, 2012, Trafka became a full-time employee of Emerge under the title of Vice President of Engineering and Quality. (PSUF ¶¶ 65-66; DRPS ¶¶ 65-66.) Her responsibilities in that role included, among other things: the design and development of inr strumentation and devices used in trauma-based surgeries, as well as establishing and assuring compliance of Quality Systems to applicable regulations and standards; overseeing certain outside contractors; determining the materials used by Emerge in the production of its products; maintaining the design history file for Emerge’s products; developing nécessary regulatory strategies; reviewing all associated regulatory submissions for clinical research and marketing approval; communicating and resolving quality issues and applying root cause analysis to drive corrective and preventative actions; and coordinating the reporting of adverse events. (PSUF ¶ 67; DRPS ¶ 67.)

Preston Baus is a former Synthes Sales Consultant for Synthes Trauma and began working for Synthes in June 2004. (PSUF ¶ 72; DRPS ¶ 72.) In March 2006, Synthes promoted Baus to a new role within Synthes as a Market Development Manager in Solothurn, Switzerland, where he was responsible for driving sales of Synthes’s trauma product line within his assigned areas of responsibility. (PSUF ¶ 73; DRPS ¶ 73.) Thereafter, in January 2009, Baus became Business Manager of EMEA Vet in Oberdorff, Switzerland, where he oversaw efforts to grow business for Synthes Veterinary in .his area. (PSUF ¶ 74; DRPS ¶ 74.) In September 2010, he became a Sales Consultant for Synthes Trauma again, and remained in that position until he resigned from Synthes on April 7, 2011. (PSUF ¶ 75; DRPS ¶ 75.)

B. Background of the Key Players’ Employment With Synthes

1. Defendant Marotta’s Employment With Synthes

From June 2004 through April 15, 2010, Marotta-was employed by Synthes in its Trauma Division. (PSUF ¶ 79; DRPS ¶ 79.) Prior to his employment , with Synthes, Marotta had no experience in the orthopedic medical device industry. (PSUF ¶ 80; DRPS ¶ 80.) As part of his employment with -Synthes, Marotta received specialized training, had some limited access to Synthes’s resources and information, and would travel to existing and prospective customers of Synthes. (PSUF ¶¶ 81-82, 85-86; DRPS ¶¶ 81-82, 85-86.) On occasion, Marotta would have access to Synthes’s product development and manufacturing facilities. (PSUF ¶ 87; DRPS ¶ 87.)

When Synthes first hired Marotta in 2004, he was employed as a sales consultant in a territory in the Desert Valley region of Arizona. (PSUF ¶ 88; DRPS ¶ 88.) In connection with his hiring, and as a condition of his employment with Synthes, Marotta entered into two agreements with Synthes: a Sales Consultant Confidentiality, Non-Solicitation, and Non-Competition Agreement (“SC NCA”) and an Employee Innovation and NonDisclosure Agreement (“NDA”). (PSUF ¶ 89; DRPS ¶ 89.) According to Marotta’s resume, his responsibilities as a Synthes Sales Consultant included “[m]anag[ing] a customer base including 97 surgeons,” and *635 “[pjroduct specialties includ[ing] Locked Plates, Cannulated Screws, IM Nails, External Fixation, Bio-Materials, and Power Equipment.” (Pis.’ Appx. 17; PSUF ¶ 90; DRPS ¶ 90.) As a Sales Consultant, Mar-otta had responsibility to develop, maintain, and' expand customer relationships, including relationships at the hospital level with the operating room, materials management, sterile processing and other hospital staff, and physicians. (PSUF ¶ 92; DRPS ¶ 92.) In that role, he established direct contact with orthopedic surgeons, some of whom were Synthes customers, and became familiar with their preferences. (PSUF ¶ 93; DRPS ¶ 93.) His responsibilities included being physically present in the operating room to support surgeries with respect to all Synthes products. (PSUF ¶ 94; DRPS ¶ 94.)

Marotta received a substantial amount of field inventory to help support operations in his territory. (PSUF ¶ 98; DRPS ¶ 98.) His territory included, among others, the following customer accounts: Banner Gateway Medical Center, Banner Bay-wood Medical Center, Banner Desert Medical Center, Chandler Regional Hospital, Mercy Gilbert Medical Center, and Arizona Orthopedic Hospital. (PSUF ¶ 99; DRPS ¶ 99.) Some of the physicians that worked at sales facilities within Mar-otta’s Sales Consultant Territory include: Neil Motzkin, Peter Seipel, Dan Aschen-brener, Salvatore La Cognata, John Dug-gan, Danton Dungy, Dennis Armstrong, Daniel Mullen, Earl Feng, Jason Tani, and Anthony Theiler. (PSUF ¶ 100; DRPS ¶ 100.)

Marotta was a highly successful sales consultant in his Synthes Sales Consultant territory and had developed very good relationships and goodwill with both'the physician customers and the hospitals. (PSUF ¶ 110; DRPS ¶ 110.) As such, Synthes promoted Marotta to Regional Manager for the Rocky Mountain Region in September 2007. (PSUF ¶ 111; DRPS ¶ 111.) Marotta’s promotion took effect on February 1, 2008, however, Marotta indicated that he effectively became acting Regional Manager of Rocky Mountain Region back in October 2007. (PSUF ¶¶ 113-14; DRPS ¶¶ 113-14.) In connection with this promotion, Marotta received a compensation package, which included a minimal annual income guarantee of $320,000 for two years, and he executed a Regional Manager Confidentiality, Non-Solicitation, and Non-Competition Agreement (“RM NCA”). (PSUF ¶¶ 115-16; DRPS ¶ 115-16.) In addition, Marotta received a relocation package of approximately $190,000. (PSUF ¶ 117; DRPS ¶ 117.)

According to Marotta’s resume, his responsibilities as Synthes Regional Manager involved management of a “$36 million P & L” and a total of twenty-six direct reports. (PSUF ¶ 118; DRPS ¶ 118.) He handled high level, multi-mil-lion dollar sales and negotiations in major integrated delivery networks (“IDN”) and established warehouse, distribution, and office operations in Colorado. (PSUF ¶ 119; DRPS ¶ 119.) In addition, among other job duties, Marotta had responsibility for maintaining and growing sales in his region; leading a sales time to achieve ongoing company sales goals; handling Regional business; establishing and nurturing effective working relationships with key accounts, surgeons, and AO faculty in the Region; and maintaining good customer relations with the hospitals and physicians in his region. (PSUF ¶¶ 120-22; DRPS ¶ 120-22.) Customer accounts within Marotta’s region during this time included: Denver Health, Swedish Medical Center, University of Colorado University Hospital, St. Mary’s Hospital and Regional Medical Center, Banner Health Facilities, USPI *636 Facilities, Centura Health Facilities, an Intermountain Healthcare facility. (PSUF ¶ 124; DRPS ¶ 124.)

One of the physicians who worked at the Denver Health facility in the Rocky Mountain Region was Dr. Steve Morgan. (PSUF ¶ 128; DRPS ¶ 128.) Dr. Morgan is a leader in the field of orthopedics, is regarded as an expert in orthopedic trauma surgery, and is a member of the AO faculty. (PSUF ¶¶ 130-31; DRPS ¶¶ 130-31.) Marotta first met Dr. Morgan in Arizona and continued to have dealings with him on Synthes’s behalf. (PSUF ¶¶ 126-27; DRPS ¶¶ 126-27.)

During Marotta’s tenure as a Synthes Regional Manager, Synthes dispatched Marotta to Arizona in January 2010 while the assigned Regional Manager for that region, Chance Leonard, was on medical leave. (PSUF ¶ 132; DRPS ¶ 132.) As a regional manager, Marotta made some introductions between Leonard and the physicians in Marotta’s former Sales Consultant territory. (PSUF ¶ 134; DRPS ¶ 134.) Marotta also attended some meetings with customer accounts in his former Sales Consultant territory. (PSUF ¶ 136; DRPS ¶ 136.) While Regional Manager, Marotta also assisted Leonard with his role in Arizona and helped him with an initiative called “Operation Checkmate.” (PSUF ¶ 138; DRPS ¶ 138.)

During his employment, Synthes provided Marotta with information regarding its products and customers. (PSUF ¶ 141; DRPS ¶ 141.) Marotta also had access to and received technical, customer, prospect, financial, and other information that is proprietary and confidential to Synthes. (PSUF ¶ 142; DRPS ¶ 142.) Among this information was Synthes sales data, product introduction plans, profit and loss information, information related to the performance and ranking of Synthes Sales Consultants and territories/regions, information related to Synthes product development plans and product-specific promotions, information related to the compensation of Synthes’s Sales Consultants, and information related to Synthes pricing strategies and negotiations. (PSUF ¶¶ 143-44; DRPS ¶¶ MS-44.) Marotta also visited Synthes’s product development and manufacturing facilities, including Synthes’s facilities in Monument, Colorado and Paoli, Pennsylvania. (PSUF ¶ 145; DRPS ¶ 145.)

During his career with Synthes, Marotta earned in excess of $2.5 million. (PSUF ¶ 146; DRPS ¶ 146.) In addition to his compensation and relocation package, Marotta received business expense advances and tuition reimbursement for his MBA degree received in March 2010. (PSUF ¶¶ 148-50, 152; DRPS ¶¶ 148-50, 152.) According to Synthes’s employee policy manuals and the applications for tuition reimbursement, if an employee leaves Synthes within one year of completing the courses for which reimbursement was paid by Synthes, the employee is required to reimburse Synthes for any tuition reimbursement paid within the past year. (PSUF ¶ 153; DRPS ¶ 153.) Mar-otta acknowledged this policy. (PSUF ¶ 154; DRPS ¶ 154.) .

2. Defendant Brown’s Employment With Synthes

Brown was employed by Synthes from November 9, 1995 to August 2, 2010. (PSUF ¶ 159; DRPS ¶ 159.) Prior to commencing employment, Brown was required to execute an Employee Innovation and Non-Disclosure Agreement (“Brown NDA”). (PSUF ¶ 160; DRPS ¶ 160.) In addition, Brown received and reviewed Synthes’s Employee Policy Manuals and Sales Policy Manual, and Synthes’s Global Code of Business Conduct and Ethics and IT Security Policy. (PSUF ¶ 162; DRPS ¶ 162.) During his tenure with Synthes, *637 Brown also received specialized training concerning the trauma industry, product segments, human anatomy, the treatment of traumatic fractures, and the application of trauma products in the surgical environment. (PSUF ¶ 164; DRPS ¶ 164.)

In April 2006, Brown received a promotion to Regional Manager of the Rocky Mountain Region, effective June 1, 2006. (PSUF ¶ 165; DRPS ¶ 165.) As a condition of his promotion,' Brown executed a Regional Manager Confidentiality, Non-Solicitation and Non-Competition Agreement (“Brown RM NCA”) on April 24, 2006. (PSUF ¶ 166; DRPS ¶ 166.) He then received a second promotion to Area Vice President of the Rocky Mountain Area effective January 1, 2008, a condition of which required execution of an Area Vice President Confidentiality, Non-Solicitation and Non-Competition Agreement (“AV NCA”). (PSUF ¶¶ 167-68; DRPS ¶¶ 167-68.)

During his employment with Synthes, Brown had regular and direct contact with Synthes’s customers and became intimately familiar with their business needs. (PSUF ¶ 170; DRPS ¶ 170.) In addition, he had access to Synthes’s confidential, sensitive, proprietary, and trade secret information. (PSUF ¶ Í71; DRPS' ¶ 171.)

Around the same time that Marotta and Powell tendered their resignations from Synthes on March 15, 2010, • Brown requested and obtained a transfer to a lower level position with Synthes as Regional Manager of the Lone Star Region of Texas, effective April 1, 2010. (PSUF ¶ 174; DRPS ¶ 174.) In close proximity to his transfer, Brown contacted Synthes Human Resources to inquire into the effect of his AVP NCA after taking the position as Regional Manager in Texas and whether a Regional Manager Non-Competition Agreement would supersede his AVP NCA. (PSUF ¶ 175; DRPS ¶ 175.) Synthes indicated that if Brown signed a Regional Manager Non-Competition,' Agreement for this new position in Texas, his AVP NCA would remain in effect. (Id.)

3. Defendant Powell’s Employment With Synthes

Defendant Powell applied to Synthes on March 11, 2004, without any background in the orthopedic medical device industry. (PSUF ¶ 176; DRPS ¶ 176.) On March 18, 2004, Powell accepted a position as a Territory Assistant in Synthes’s Trauma division based in the Great Lakes West Territory in the area of Chicago, Illinois. (PSUF ¶ 177; DRPS ¶ 177.) In connection with his hiring, Powell executed an Employee Innovation and Non-Disclosure Agreement (“Powell NDA”). (PSUF ¶ 178; DRPS ¶ 178.) Powell also received and reviewed Synthes’s Employee Policy Manual and amended. Employee Policy Manual, Sales Policy Manual, Global Code of Business Ethics, and IT Security Policy. (PSUF ¶ 179; DRPS ¶ 179.)

In September 2004, Synthes promoted Powell to Associate Sales Consultant and, in June 2006, to Sales Consultant for the' territory covering Vail, Colorado. (PSUF ¶ 180; DRPS ¶ 180.) As part of his promotion, Powell reviewed and executed a Sales Consultant Confidentiality, Non-Solicitation, and Non-Competition Agreement on June 1, 2006. (“Powell SC NCA”). (PSUF ¶ 181; DRPS ¶ 181.) One of Powell’s key responsibilities as a Sales Consultant was to build relations with surgeons, operating room personnel, and other key hospital personnel. (PSUF ¶ 183; DRPS ¶ 183.) Powell reported directly to Marotta during the time period when Mar-otta was Regional Manager for the Rocky Mountain Region. (PSUF ¶ 187; DRPS ¶ 187.)

*638 During his tenure with Synthes, Powell earned approximately $300,000 in 2008, and just over half of that in 2009. (PSUF ¶ 188; DRPS ¶ 188.)' Synthes also paid over $34,000 in tuition reimbursement in connection with the MBA degree Powell obtained from the University of Denver while employed by Synthes. (PSUF ¶ 189; DRPS ¶ 189.) Powell completed his MBA program in August 2010. (PSUF ¶ 190; DRPS ¶ 190.) Powell was under the same tuition reimbursement policy as Marotta and acknowledged that he would have to reimburse Synthes for any tuition if he left within one year of completing the courses for which reimbursement was paid by Synthes. (PSUF ¶¶ 191-92; DRPS ¶¶ 191-92.)

On March 15, 2010, Powell tendered his resignation to his direct supervisor, Marot-ta. (PSUF ¶ 197; DRPS ¶ 197.) Prior to that time, Powell had'given his. resume to Marotta for other positions within Synthes. (PSUF ¶ 198; DRPS ¶ 198.) Ultimately, Powell was offered employment with Sono-ma Orthopedic Products, Inc., on February 25, 2010. (PSUF ¶ 199; DRPS ¶ 199.) He accepted the offer on March 1, 2010, and signed an employment agreement with Sonoma on March 15, 2010. (PSUF ¶ 200; DRPS ¶ 200.) Powell then disclosed to Synthes that he would be joining a competitor. (PSUF ¶ 201 DRPS ¶ 201.) In turn, Synthes sent a letter to Powell, on March 25, 2010, enclosing copies of the Powell SC NDA and Powell NDA, and indicating, in part, as follows:

Dear Chaun,

I am writing to remind you of our continuing obligations to Synthes under the Confidentiality, Non-Solicitation and Non-Competition Agreement (“Non-competition Agreement”) that you signed June 1, 2006 and the Innovation and Non-Disclosure Agreement (“NonDisclosure Agreement”) that you signed on March 14, 2004. Copies of these Agreements are enclosed for your reference.

The Agreements prohibit you from disclosing Synthes’ or its customers’ confidential and proprietary information to any competitor or third party at any time. They also prohibit you from using such information for any purpose after leaving Synthes The Non-Competition Agreement also prohibits you from disclosing Synthes’ or its customers’ confidential and proprietary information to any competitor or third party at any time. It also prohibits you from using such information for any purpose after leaving Synthes. The Non-Competition Agreement also prohibits you, for a period of one-year following your employment with Synthes, from soliciting the prospects or customers or their affiliates with whom you had contact for Synthes. You are similarly prohibited from soliciting or hiring any Synthes employee to work elsewhere. Finally, you are required to return all materials that belong to Synthes immediately upon the termination of your employment. If you have not done so already, you should talk to your supervisor about returning these materials.

(PSUF ¶ 202; DRPS ¶ 202; Pis.’ Appx. 113.) On the same day, Synthes sent a letter to Sonoma Orthopedic Products, Inc., which enclosed copies of the Powell SC NCA and Powell NDA, and stated, in part, as follows:

Dear Sir or Madam:

You should be made aware that one of your newly hired employees, Charles (Chaun) Powell, was recently employed by our company, Synthes (USA), and had signed an “Employee Innovation and Non-Disclosure Agreement” and a “Non-Competition Agreement” with us, *639 in which he assumed certain legal obligations that extend to his subsequent employment activities. A copy of the Agreements, signed by Chaun, is enclosed for your reference.

The “Employee Innovation and NonDisclosure Agreement” prohibits Chaun from disclosing Synthes’ or its Customers’ confidential and proprietary information, as defined in the agreement, to any competitor or third party at any time and from using such information for any purpose after leaving Synthes. Such information or knowledge would include, but not limited to, any or all product information gained as a result of his participation in our product technology, project information, manufacturing methods, technology, reports or reporting systems, product development process, test market activities, Sales Meetings and/or Annual Meetings, as well as any other proprietary information to which they have had access.

The “Non-Competition Agreement” also prohibits Chaun, for a period of one-year following his employment with Synthes, from soliciting the prospects or customers or their affiliates with whom he had contact for Synthes.

Any violation of the “Employee Innovation and Non-Disclosure Agreement” is also a violation of the Federal Uniform Trade Secrets Act which makes illegal any misappropriation or disclosure of Trade Secrets.

(PSUF ¶ 203; DRPS ¶203; Pis.’ Appx. 115.)

Powell began his employment with So-noma Orthopedic Products, Inc. as a Trauma Sales Representative on March 15, 2010. (PSUF ¶ 204; DRPS ¶ 204.) That employment included a three-month guarantee of $10,000 per month. (PSUF ¶ 205; DRPS ¶ 205.) On August 2, 2010, Powell tendered his resignation to Sonoma Orthopedic Products, Inc., to take effect on September 1, 2010. (PSUF ¶ 206; DRPS ¶ 206.)

4. Trafka’s Employment with Synthes and Maynum Tool

Synthes offered Trafica a position as a manufacturing engineer at Synthes’s Monument, Colorado facility on May 29, 1998. (PSUF ¶ 207; DRPS ¶ 207.) In connection with her employment, Trafica executed an Employee Innovation and Non-Disclosure Agreement and reviewed Synthes’s Employee Policy Manual. (PSUF ¶¶ 208-09; DRPS ¶ 208-09.) As a manufacturing engineer at Monument, Trafka’s duties were to create aid to manufacturing processes and then document those manufacturing processes. (PSUF ¶ 211; DRPS ¶ 211; Pis.’ Appx. 39, Dep. of Victoria Trafica (“Trafica Dep.”), 44:15^4:1, June 12', 2013.) In that role, she worked directly with, both product development engineers and quality control engineers. (PSUF ¶ 212; DRPS ¶ 212; Trafica Dep. 48:9-49:14.) In April or May of 2001, Trafica resigned from Synthes. (PSUF ¶ 213; DRPS ¶ 213.)

From May 2005 until December 2010, Trafica was employed by Magnum Tool (“Magnum”). (PSUF ¶ 214; DRPS ¶ 214.) Magnum was a vendor used by Synthes for certain manufacturing products. (PSUF ¶ 218; DRPS ¶218.) At Magnum, Trafica held positions as project engineer, engineering manager, senior project development engineer, and International Standards Organization manager. (PSUF ¶ 215; DRPS ¶ 215.) During this time, Trafica agreed to maintain the confidentiality of Synthes’s proprietary and confidential information accessible to Magnum employees in connection with Magnum’s vendor relationship with Synthes. (PSUF ¶ 219; DRPS ¶ 219.) Indeed, she person *640 ally signed an agreement on behalf of Magnum, providing that:

The Parties agree that any business and technical information, including but not limited to volume, forecasts, drawings, specifications, formulae and manufacturing processes, whether marked or unmarked, verbal or written, provided by either Party are to be considered proprietary and confidential, and are to be treated in a confidential manner by both the supplier and Synthes.

It is further understood that duplication or disclosure of such information to a third party without written permission of the disclosing party is prohibited. This information and any material supplied by either Party remain the property of the disclosing Party and shall be returned in their entirety upon request.

(PSUF ¶ 220; DRPS ¶ 220; Pis.’ Appx. 122.) During Trafka’s employment with Magnum, she also entered into additional non-disclosure agreements with Synthes. (PSUF ¶ 221; DRPS ¶ 221.)

In connection with her employment with both Synthes and Magnum, Trafka was privy to information about Synthes’s specifications for raw materials, machining and manufacturing of product, the finishing of Synthes products, and the inspection of Synthes products. (PSUF ¶ 222; DRPS ¶222.) She was also given information about how and where Synthes stores its product drawings and how and where Synthes stores specifications related to raw materials, machining and manufacturing, finishing, and inspection. (PSUF ¶ 223; DRPS ¶223.) Finally, Trafka admitted that she had access to Synthes specifications and information regarding raw materials, machining, manufacturing, finishing, and inspection. (PSUF ¶ 224; DRPS ¶ 224.)

C. Written Obligations of the Parties and Other Individuals

1. Synthes Written Obligations

a. Contractual Obligations

Under Synthes’s employee policies, “All employees are required to sign an Employee Innovation and Non-Disclosure agreement prior to employment.” (PSUF ¶¶ 225-26; DRPS ¶¶ 225-26.) In addition, Non-Competition Agreements are required as a condition of employment for all new Sales Consultants and other positions which may have access to proprietary and/or confidential business information. (PSUF ¶¶ 227-28; DRPS ¶¶ 227-28.) Further, in connection with a promotion, Synthes also requires employees, such as Regional Managers, to execute Synthes’s Confidentiality, Ñon-Solicitation, and Non-Competition Agreements. (PSUF ¶ 229; DRPS ¶ 229.)

Marotta’s Regional Manager Non-Competition Agreement (“RM NCA”) required that he acknowledge the following:

I acknowledge that: (1) Synthes (U.S.A.), its partners, and its and their parents, affiliates, subsidiaries, divisions, and related companies or entities, including but not limited to Synthes, Inc., Synthes Spine Company, L.P., Synthes Maxillofacial, Synthes North America, Inc., Spine Solutions, Inc., SYTH, Inc. and Norian Corporation (collectively referred to herein as “Synthes”), are engaged in the business of developing, designing, manufacturing, and selling surgical, medical and veterinary implants, medical biomaterial and endoscopic technologies, products and services in connection with osteosynthe-sis, musculoskeletal, maxillofacial and spine surgery, including, but not limited to, compression plates and screws, in-termedullary nails, external fixation devices, percutaneous devices, cranio-facial *641 implants, mandible implants, spinal implants and screws, surgical instruments, osteobiologic and disc replacement products, and minimally invasive and endoscopic products (the “Business”); (2) the Business encompasses a broad range of technologies, products and services that Synthes now provides and may in the future develop internally or obtain through acquisitions, merger, sub-contracting or otherwise; (3) Synthes is in a highly competitive industry; (4) Synthes invests substantial time, money, and effort, on an ongoing basis, to train its employees with specialized skill and knowledge unique to Synthes and its Business, to develop technologies, products and services for the Business, to develop and maintain a proprietary data base of prospects, to maintain and expand its customer base, and to improve and develop its technologies, products and services; (5) from the outset of and during my employment with Synthes, I have had and will. continue to have access to, receive, learn, develop and/or conceive technical, customer, prospect, financial or other information that is proprietary and/or confidential to Synthes; (6) this information must be kept in strict confidence to protect Synthes’ Business and maintain its competitive position in the marketplace, and this information would be useful to Synthes’ existing and potential competitors for indefinite periods of time; (7) from the outset of and during my employment with Synthes, I have had and will continue to have access to and will be required to maintain, supervise, develop and initiate customer relationships and goodwill that are valuable to Synthes and which it has a legitimate interest in protecting; (8) Synthes would be irreparably harmed by my subsequent work with, for or as a competitor 'of Synthes, in an executive, managerial, marketing, sales, technical, administrative, or product development capacity, due to the possibility that there would be inadvertent or other disclosures of Synthes’s proprietary and/or confidential information or that there would be improper intererence with its valuable customer relationships and goodwill; (9) I acknowledge that my promotion to Regional Manager constitutes adequate consideration for signing this agreement and that, as further consideration for this agreement and the restrictions contained herein, I acknowledge that I have been given access to confidential, proprietary and trade secret information of Synthes; and (10) the restrictions in this, agreement are reasonable and necessary to protect Synthes’ legitimate business interests.

(PSUF ¶ 230; DRPS ¶230; Pis.’ Appx. 68.) This language is typical of many of the other NCA’s signed by Synthes employees, including those of Brown and Powell. (PSUF ¶ 231 (citing similar agreements).) These agreements also specified what constituted confidential and proprietary information, including information concerning: (1) the identity of customers and prospects, their specific requirements, and their names, addresses, and telephone numbers; (2) prices, renewal dates, and other detailed terms of customer and supplier contracts and proposals; (3) pricing policies, methods of delivering services and products, marketing and sales strategies, product know-how, product technology, and product development strategies; (4) physical security systems, access control systems, network, and other equipment designs; (5) employment and payroll records; (6) forecasts, budgets, and other non-public financial information; (7) product performance information, product technical information, and product know-how; and (8) expansion plans, manage *642 ment policies, and other business strategies and policies. (PSUF ¶ 232; DRPS ¶ 232; Pis.’ Appx. 49, 68, 98,104.)

Under these agreements, Marotta, Brown, and Powell agreed that, upon termination of their employment with Synthes, they would immediately return “all correspondence files, business card files, customer and prospects lists, price lists, product lists, software, manuals, technical data, forecasts, budgets, notes, electronically stored information or data, and other materials that contain any of this information.” (PSUF ¶ 233; DRPS ¶ 233.) The agreements indicated that the provisions applied “even to information of this type that is developed or conceived by me, alone or with others, at Synthes’ instruction or otherwise” and that “these provisions apply to all information I may receive that is confidential and/or proprietary to any customer or other person or entity who does business with Synthes.” (PSUF ¶ 234; DRPS ¶ 234; Pis.’ Appx. 49, 68, 98,. 104.)

Under Marotta’s, Brown’s, and Powell’s and Employee Innovation and Non-Disclosure Agreements (“NDA-s”), the three individuals agreed to the following:

... to disclose and assign to SYNTHES as its exclusive property, all inventions and technical or business innovations, including computer software developed or conceived by me solely or jointly with others on company time or on my own time during the term of my employment, (1) that are along the lines of the businesses, work or investigations of SYNTHES or its affiliates to which my employment relates, or as to which I may receive information due to my employment, or (2) that result from or are suggested by any work which I may do for SYNTHES or (3) that are otherwise made through the use of SYNTHES time, facilities or materials ...

... upon any termination of my employment to deliver to SYNTHES promptly all items which belong to SYNTHES or which by their nature are for the use of SYNTHES employees only, including, without limitation, all written and other materials which are of a secret or confidential nature relating to the business of the Company or its affiliates ...

... not to use, publish or otherwise disclose (except as my SYNTHES duties may require) either during or subsequent to my employment, .any secret or confidential information or data of SYNTHES or any information or data of others, such as, but not limited to, sales dollars or units, product technology or product development, project information, manufacturing methods or technology, reports or reporting systems, which SYNTHES is obligated to maintain in confidence.'

(PSUF ¶ 237; DRPS ¶237; Pis.’ Appx. 52, 96, 100.) Synthes employees Victoria Trafka, Chance Leonard, Sean North, Brennen Warren, Preston Baus, Brian Hahn, and Craig Lynn had similarly-worded obligations under their respective Employee Innovation and Non-Disclosure Agreements. (Pis.’ Appx. 118, 126, 127, 128, 129, 130, 131.) Baus also maintained an additional confidentiality and non-disclosure obligation in connection with his promotion within Synthes to Market Development Manager in Solothurn, Switzerland, as follows:

The Employee shall not, during the term of his employment and thereafter disclose to any party of use for his own benefit any information concerning the business of the Company or any of its affiliated companies, which have become known to the Employee. “Information about the business” includes, without limitation, all business, organization and technical knowledge, know-how, proprie *643 tary or confidential information, names or addresses of customers of the Company or any of its affiliated companies and any other information which is known only to a limited number of persons and which is not intended to become known outside of the Company or any of its affiliated companies.

All written and other record and all tangibles concerning the Company or any of its affiliated companies and their business which are in the possession of the Employee shall be carefully kept and shall be immediately returned to the Company upon its request, and in any case upon termination of the employment.

(Pis.’ Appx. 132.)

Under their respective Sales Consultant Non-Competition Agreements (“SC NCA”), Marotta and Powell agreed as follows:

I will not, for a period of one year after my employment with Synthes terminates for any reason, solicit or contact, directly or through others, for the pur- ■ pose of competing or interfering with any part of Synthes’ business, (1) any customer of Synthes that I solicited at any time during the last three years of my employment; -(2) any prospective customer of Synthes that received or requested a proposal or offer from me on behalf of Synthes at any time during the last three years of m employment; or (3) any customer or prospective customer of Synthes for which I had any responsibility, directly or indirectly, at any time during the last three years of my employment ...

I agree I will not, for a period of one year after my employment terminates for any reason, work for (as an employee, consultant, contractor, agent or representative) any competitor of Synthes in the territory or territories that I am now, or have been responsible for at any time during the last year of my employment with Synthes.

(PSUF ¶ 240; DRPS ¶ 240; Pis.’ Appx. 49, 104.) “Competitors” as stated in the SC NCAs, were deemed to be “any persons or entities who now, or in the future, sell, or intend to sell, orthopedic, bone fixation, maxillofacial, medical, endoscopic and/or spinal implant devices or instrumental technologies, products, or services.” (PSUF ¶ 241; DRPS ¶241; Pis.’ Appx. 49, 104.) Again, Synthes employees Colin Brown and Brennen Warren had similarly-worded obligations in their own Confidentiality, Non-Solicitation, and Non-Competition Agreements. (Pis.’ Appx. 133, 135.)

Upon his promotion to Regional Manager, Marotta again agreed to certain non-competition provisions in his RM NCA, as follows:

NO CONTACT WITH OR SOLICITATION OF CUSTOMERS & PROSPECTS:

I agree that, during my employment and for a period of twelve (12) months after my employment with Synthes terminates for any reason, voluntary or involuntary, I will not solicit, contact, or provide services to (or attempt to do any of the foregoing), directly or indirectly, for the purpose or effect of competing or interfering with any part of Synthes’ Business: (1) any customer of Synthes within my assigned territory; (2) any Customer of Synthes that I contacted, solicited, received compensation on sales, to whom I provided coverage, or in any way supported or dealt with at any time during the last two years of my employment; (3) any prospective Customer of Synthes that I contacted, for whom I had coverage responsibility, or who received or requested a proposal or offer from me on behalf of Synthes at any time during the last two years of my *644 employment; (4) any existing or prospective Customer of Synthes for which I had any direct or indirect responsibility at any time during the last two years of my employment ...

NO SOLICITATION OR HIRING OF EMPLOYEES:

Pagree that, during my employment and for a period of twelve (12) months after my employment with Synthes terminates for any reason, voluntary or involuntary, I will not directly or indirectly, (1) solicit, induce, or encourage any employee of Synthes to leave his/her employment with Synthes, (2) offer any employee of Synthes employment elsewhere, (3) participate in the recruitment of any employee of Synthes to work elsewhere, or (4) hire any employee of Synthes to work elsewhere.

NO COMPETITION IN SAME REGION:

I agree that, during my employment and for a period of twelve (12) months after my employment with Synthes terminates for any reason, voluntary or involuntary, I will not, directly or indirectly, compete in my former Region with Synthes’ Business. This means that I will not work for or be involved in the Business of any Competitor of Synthes in an executive, managerial, marketing, sales, technical, administrative or product development capacity, whether as an owner, principal, partner, employee, consultant, contractor, agent or representative.

(PSUF ¶ 243; DRPS ¶ 243; Pis.’ Appx.' 68.) The term “Customer” included hospitals, hospital employees that influenced medical device purchasing decisions “including material management, operating room, sterile processing, and related personnel; and physicians who may use the devices, together with their partners, employees, and staff nurses.” (PSUF ¶ 245; DRPS ¶ 245; Pis.’ Appx. 68.)

Synthes employees Chance Leonard, Colin Brown, Mike Saunders, Sean North, and Andy White had similarly-worded obligations under their respective Regional Manager Confidentiality, Non-Solicitation, and Non-Competition Agreements. (Pis.’ Appx. 134, 136, 137, 139.) Likewise, Synthes employees Josh Gorman, Jason Fowler, Brian Hah, and Preston Baus had similarly-worded obligations under their respective Sales Consultant Confidentiality, Non-Solicitation, and Non-Competition Agreements, with the exception of the non-competition covenant limiting competition in their former Sales Consultant territory, as opposed to a regional manager region. (Pis.’ Appx. 140,141,142,143.)

Under his Area Vice-President Non-competition Agreement (“AVP NCA”), Brown agreed to similar prohibitions on a national scale, as follows:

NO CONTACT WITH OR SOLICITATION OF CUSTOMERS & PROSPECTS

I agree that, during my employment and for a period of twelve (12) months after my employment with Synthes terminates for any reason, voluntary or involuntary, I will not solicit, contact, or provide services to (or attempt to do any of the foregoing) directly or indirectly, for the purpose or effect of competing or interfering with any part of Synthes’ Business: (1) any Customer of Synthes within the United States; (2) any Customer of Synthes that I contacted, solicited, received compensation on sales, to whom I provided coverage, or in any way support or dealt with at any time during the last two years of my employment; (3) any prospective Customer of Synthes that I contacted, for whom I had coverage responsibility, or who received or requested a proposal or offer *645 from, me on behalf of Synthes at any time during the last two years of my employment; (4) any existing or prospective Customer of Synthes for which I had any direct or indirect responsibility at any time during the last two years of my employment ...

NO SOLICITATION OR HIRING OF EMPLOYEES:

I agree that, during my employment and for a period of twelve (12) months after my employment with Synthes terminates for any reason, voluntary or involuntary, I will not directly or indirectly, (1) solicit, induce, or encourage any employee of Synthes to leave his/her employment with Synthes, (2) offer any employee of Synthes employment elsewhere, (3) participate in the recruitment of any employee of Synthes to work elsewhere, or (4) hire any employee of Synthes to work elsewhere.

NO COMPETITION IN SAME REGION:

I agree that, during my employment and for a period of twelve (12) months after my employment with Synthes terminates for any reason, voluntary or involuntary, I will not, directly or indirectly, compete with Synthes’ Business within the United States. This means that I will not work for or be involved in the Business of any Competitor of Synthes in an executive, managerial, marketing, sales, technical, administrative or product development capacity, whether as an owner, principal, partner, employee, consultant, contractor, agent or representative.

(PSUF ¶ 251; DRPS ¶ 251; Pis.’ Appx. 98.)

All of the Synthes Confidentiality, Non-Solicitation, and Non-Competition Agreements cited above, including Marotta’s SC NCA and RM NCA, Brown’s AVP NCA, and Powell’s SC NCA, have choice of law provisions under which Pennsylvania law is to govern the agreements. (PSUF ¶ 257; DRPS ¶ 257.)

b. Employment Policies and Obligations

In connection with his employment at Synthes, Marotta received the Synthes Employee Policy Manual, the Global Code of Business Ethics, the Synthes Sales Policy Manual, and Synthes’s IT Security Policy, and, in 2009, Marotta received and reviewed Synthes’s amended Employee Policy Manual. (PSUF ¶259; DRPS ¶ 259.) Marotta was trained on all of these policies. (PSUF ¶¶ 261, 263, 265, 267; DRPS ¶¶ 261, 263, 265, 267.) Marot-ta generally understood, based on these policies, that computer systems belonged to Synthes, that he was expected to operate in accordance with the terms of the Employee Policy Manuals, that he understood that he had an obligation to abide by Synthes’s rules as an employee of Synthes, and that, as a Regional Manager, he should enforce Synthes’s rules. (PSUF ¶¶ 269-72; DRPS ¶¶ 269-72.)

2. Emerge'’s Written Contracts and Policies

Upon joining Emerge, Marotta executed an Executive Employment Agreement. (PSUF ¶ 273; DRPS ¶273.) Marotta’s Executive Employment Agreement contained, among others, the following relevant provisions:

6. Confidential Information.

6.1 Company Information. Except for the benefit of Company, Executive agrees at all times ... to hold in strictest confidence, and not to use, or to disclosure to any person, firm or corporation without written authorization ... any Confidential Information (as defined below) of the Company. For purposes of this Agreement

*646 “Confidential Information” is defined as any Company proprietary information, technical data, trade secrets or know-how, including, but not limited to, research, product plans, products, services, customer lists and customers, software developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances or other business information ...

6.2 Former Employer Information.

Executive agrees that he will not, during his employment with the Company, improperly use or disclose any proprietary information or trade secrets of any former employer or other person or entity and that he will not bring onto the premises of the Company any unpublished document or proprietary information belonging to any such employer, person or entity unless consented to in writing by such employer, person or entiiy. ' The Company and Executive acknowledge that Executive is subject to certain confidentiality and competition restrictions with his former employer under the terms of a confidentiality, non-solicitation and non-competition agreement with his former employer (the “NCA Agreement”). Executive will not and will not cause Company to breach the NCA Agreement and shall indemnify the Company from any costs and expenses which may be incurred by the Company as a' result of a claimed breach of the NCA Agreement.

(Pis.’ Appx. 146 (emphasis in original).) In addition, this Employment Agreement contained its own non-competition and confidential information provisions. (Id.)

Emerge also required its employees-including Marotta and Powell-to sign'Confidential Information and Innovations and Proprietary Rights Assignment Agreements. (PSUF ¶ 276; DRPS ¶ 276.) Aside from provisions'regarding the protection of Emerge proprietary information, the document contained the following provision:

1.4 No Improper Use of Information of Prior Employers and Others. During my employment or business relationship with the Company I will not improperly use or disclose any confidential information or trade secrets, if any, of any former employer or any other person to whom I have an obligation of confidentiality, and I will not bring onto the premises of the Company any unpublished documents or any property belonging to any former employer or any other person to whom I have an obligation of confidentiality unless consented to in writing by that former employer or person. I will use in the performance of my duties only information which is generally known and used by persons with training and experience comparable to my own, which is common knowledge in the industry or otherwise legally in the public domain, or which is otherwise provided or developed by the Company....

(Pis.’ Appx. 147.)

3. Vendors’ Written Contractual Obligations to Sgnthes

Synthes entered into Supplier Quality Agreements and Non-Disclosure Agreements with the following vendors for the provision of the vendors’ goods or services to Synthes: Orchid Unique, Orchid Stealth, Orchid Bio-Coat, LLC, Magnum Tool Company, Inc., and Precision Edge *647 Surgical Product Company, LLC. (Pis.’ Appx. 148, 149.) Each of the Supplier Quality Agreements required vendors to adhere to certain Synthes-specific requirements regarding' the manufacture of Synthes products. (Pis.’ Appx. 148.) The Non-Disclosure Agreements required the vendors not to disclose any “Confidential Information” of Synthes. (Pis.’ Appx. ' 149.)

4. SIMS and Customers’ Written Contractual Obligations to Synthes

Synthes’ Inventory Management Systems (“SIMS”) are cabinets which store Synthes products. (PSUF ¶ 283; DRPS ¶ 283.) The SIMS cabinets are designed to “enhance and standardize inventory management practices of [Synthes] customers as they relate to Synthes products” and provide customers with “access to critical components ... with storage units and workstations designed to improve organization and response in the operating room.” (Pis.’ Appx. 152.) The SIMS cabinets include features such as high-density drawer storage, a visual inventory, fully enclosed compartments, lockable cabinets, adjustable dividers, and labeled plastic dividers. (Id.)

Notably, Synthes SIMS cabinets are placed into a customer account and are either owned by Synthes, the customer, or a combination of both. (PSUF ¶ 299; DRPS ¶ 299.) Generally, if not on loan, Synthes enters into agreements with customers concerning the SIMS placed at the customer account. (PSUF ¶ 300; DRPS ¶ 300.) Each of the SIMS agreements states that “the storage units will house only Synthes products.” (Pis.’ Appx. 260-76, 278-80 (emphasis in original).) These provisions appear in SIMS agreements regardless of whether the customer owns all or part of the SIMS units. (PSUF ¶ 303; DRPS ¶ 303.)

D. The Formation of Emerge Prior to April IS, 2010

1. Brief Background of Emerge

In 2009, Brown, while still employed with Synthes, was contemplating a new business that involved providing consulting services to distributors and start-up companies that sold orthopedic medical devices. (PSUF ¶ 308; DRPS ¶308.) In connection with this idea, Brown hired Zachary Stassen as a consultant. (Id.) This business model was different from the business model that ultimately became Emerge. (PSUF ¶ 309; DRPS ¶ 309.)

In or around the spring of 2009, Marotta first conceived the business plan upon which Emerge would later be based. (PSUF ¶ 310; DRPS ¶310.) Shortly thereafter, Marotta discussed this idea with Brown. (PSUF ¶ 311; DRPS ¶ 311.) Following the introduction of Marotta to Stassen in or about the summer of 2009, Brown, Marotta, and Stassen began to discuss other possible means for a new business, including the idea to sell generic medical device commodities. (PSUF ¶ 312-13; DRPS ¶ 312-13; Pis.’ Appx. 26, Interrog. Resp. No. 2.) Brown, Marotta and Stassen saw an opportunity to create a business that would sell non-patented generic medical device commodities, although Brown remained focused on his distributorship idea. (Pis.’ Appx. 6; Marotta Dep. ■351:6-352:1.) At some point, Brown proposed naming the new company “Emerge” and, upon agreement by the others, a company was incorporated under the name “Emerge Surgical, Inc.” (PSUF ¶ 316; DRPS ¶ 316.) Before incorporation, however, it was agreed that Brown would have no further place in the formation or management of Emerge. (Marotta Dep. 152:8-24.)

Following the initial meeting, Marotta and Stassen began analyzing the market to *648 determine the feasibility of starting a generic orthopedic device company and, during the fall and winter of 2009, the two men drafted a business plan and private placement memorandum for Emerge. (PSUF ¶¶ 317-18; DRPS ¶¶ 317-18.) A November 2009 draft of the business plan identified Synthes as a competitor of Emerge, noting that it dominated the orthopedic trauma industry with a nearly 50% market share. (PSUF ¶ 319; DRPS ¶ 319.) While employed by Synthes, Mar-otta had begun to identify pressures or challenges on hospital administrations that suggested to him that there may be an alternative model of distribution to better serve them. (PSUF ¶ 326; DRPS ¶ 326.)

In January 2010, Stassen resigned from his primary employment. (PSUF ¶ 323; DRPS ¶ 323.) Emerge’s Articles of Incorporation were filed on January 13, 2010. (PSUF ¶ 324; DRPS ¶324.) Prior to Marotta’s resignation from Synthes, he had spoken with potential investors on behalf of Emerge and engaged in numerous other actions to get Emerge up and running. (PSUF ¶¶ 328, 332-35; DRPS ¶¶ 328, 332-335.) Thereafter, from January 2010 to March 2010, Marotta and Stas-sen were focused on finding investors for Emerge’s initial round of financing. (PSUF ¶ 329; DRPS ¶ 329.) As of March 26, 2010, a substantial amount of money had already been raised and was in the bank. (PSUF ¶ 331; DRPS ¶ 331.) Mar-otta did not terminate his employment with Synthes until April 15, 2010. (PSUF ¶ 337; DRPS ¶ 337.)

2. Detailed Timeline of Emerge-Related Activities Prior to April 15, 2010

Prior to Marotta’s and Stassen’s introduction, Brown and Stassen worked together on a business plan for an “outsourced sales force business concept.” (PSUF ¶ 338; DRPS ¶ 338.) Marotta first conceived of the business plan on which Emerge would later be based-the concept of a company that sells generic orthopedic products-in the spring of 2009. (PSUF ¶ 341; DRPS ¶ 341.) Shortly thereafter, Marotta discussed his idea with Brown. (PSUF ¶ 342; DRPS ¶ 342.) In late July 2009, Brown met with Stassen and Stas-sen’s father to discuss Brown’s “outsourced sales force business concept,” but Stassen and his father did not think this was a viable idea. (PSUF ¶¶ 343-44; DRPS ¶¶ 343-44.)

As noted above, in the summer of 2009, following Brown’s introduction of Marotta to Stassen, the three began to discuss a possible idea to sell generic medical device commodities. (PSUF ¶¶ 346-47; DRPS ¶¶ 346-47.) On August 2, 2009, Marotta emailed Stassen and Brown a “first cut” of the Emerge business model, which identified an initial offering of drill bits and cannulated screws, a market strategy .of no sales representatives and low-cost, non-surgeon preference items, and a management team of Brown, Marotta, and Stas-sen. (PSUF ¶¶ 348-50; DRPS ¶¶ 348-50.)

Following this “first cut” email, Marotta and Brown continued to formulate ideas for the new business. (PSUF ¶ 356; DRPS ¶ 356.) Marotta and Brown then inquired with various manufacturing companies as to the types of products they could make. (PSUF ¶¶ 357-58; DRPS ¶¶ 357-58.) During the remainder of August 2009, Marotta and Brown exchanged numerous emails regarding this new business venture. (PSUF ¶¶ 359-64; DRPS ¶¶ 359-64.) Marotta also sought out Synthes invoices for 2008 and 2009, which contained customer purchasing information, including historical purchases and specific pricing. (PSUF ¶ 365-67; DRPS ¶¶ 365-67.)

On August 13, 2009, Marotta met with Stassen and Brown in Colorado to discuss *649 the business concept. (PSUF ¶ 368; DRPS ¶ 368.) Armed with a viable idea, Stassen and Marotta prepared a business plan and private placement memo to raise money from potential investors. (PSUF ¶ 369; DRPS ¶ 369.) On August 16, 2009, Brown proposed the name “Emerge Surgical.” (PSUF ¶ 375; DRPS ¶375.) That same day, Marotta emailed Brown and made reference to then-Synthes VP of Sales Louis Houff, stating “Houff will figure it out in about 10 months when we are eating his lunch.” (Pis.’ Appx. 286; PSUF ¶¶ 376-77; DRPS ¶¶ 376-77.) The back- and-forth emails continued, with a constant concern that they keep their activities “off’ or “under the radar.” (PSUF ¶¶ 378-81; DRPS ¶¶ 378-81.) Stassen, Brown, and Marotta also discussed meeting with other Synthes employees regarding their plans. (PSUF ¶¶ 385-86, 388; DRPS ¶¶ 385-86, 388.)

At one point, Marotta accidentally sent an Emerge-related email to Brown’s Synthes account. (PSUF ¶ 390; DRPS ¶ 390.) When Brown identified the error and Marotta recognized his mistake, the two agreed to forego using personal email from phones, use only personal computers and phone, and discuss only bare essentials with everyone from there on, ie. their “stealth” plan. (PSUF ¶¶ 391-92, 396-99; DRPS ¶¶ 391-92; 396-99.) This plan continued throughout Emerge’s sales efforts in 2010. (PSUF ¶¶ 401-02; DRPS ¶¶ 401-02.)

On September 2, 2009, in Denver, Colorado, Marotta had dinner with Charlie Knight, a Synthes employee, concerning Emerge. (PSUF ¶ 403; DRPS ¶ 403.) Marotta was considering retaining him in connection with the formation strategy for the business described in Marotta’s August 2, 2009 “first cut” email. (PSUF ¶ 404; DRPS ¶¶ 404.) Marotta then submitted an expense report to Synthes for the cost of this dinner, in the amount of $120.58, and identified a Dr. Fitzgerald as the Synthes customer entertained for this expense. (PSUF ¶¶ 405-06; DRPS ¶¶ 405-06.) Following some discussion about Knight’s non-compete obligations, Marotta ultimately retained Knight on behalf of Emerge in the fall of 2009. (PSUF ¶ ¶ 409-11; DRPS ¶¶ 409-11.)

On September 18, 2009, Stassen sent Marotta and Brown a PowerPoint presentation with the file name “Emerge Surgical — Zach Sections.” (PSUF ¶417; DRPS ¶ 417.) This presentation identified Brown as one of the “key management members.” (PSUF ¶418; DRPS ¶418.) Brown, in turn, noted that he was “organizing an amazing amount of data,” was “planning to create a Sales Strategy,” and “our combined efforts will result in a very tangible plan to take this to market.” (PSUF ¶ 420; DRPS ¶ 420.) In the September and October time frame, Marotta met with venture capitalists and began working with a vendor for the design of Emerge’s corporate logos. (PSUF ¶¶ 421-22; DRPS ¶¶ 421-22.)

Also in October 2009, Marotta met with Brown and Knight to discuss the non-compete agreements Marotta and Brown each had with Synthes. (PSUF ¶423; DRPS ¶ 423.) In subsequent emails, Brown “emphasized [their] adherence to the ‘stealth’ plan in order to avoid detection from Synthes and identified a number of legal issues that [they] needed to address in the upcoming week, including the recruitment of Synthes employees and whether Emerge could be formed prior to [Brown’s] and Marotta’s resignations from Synthes.” (Pis.’ Appx. 24, Brown’s Statement ¶ 72; PSUF ¶ 426; DRPS ¶426.) Brown also “described in detail the idea of [Emerge’s] model as an ‘unbundling’ of trauma segments” and “identified potential customers to target, including hospitals, *650 group purchasing organizations, and surgical centers, many of which were Synthes’ customers.” (Brown’s Statement ¶ 73; PSUF ¶ 427; DRPS ¶ 427.)

Throughout the remainder of September and October of 2009, Brown, Marotta, and Stassen exchanged many additional emails addressing strategy for Emerge. (PSUF ¶¶ 438-86; DRPS ¶¶ 438-86.) Synthes contends that many of these emails were sent during the course of Brown and Mar-otta’s employment by Synthes and that several business lunches were expensed to and paid for by Synthes. (Id.)

In late October 2009, Marotta met with Victoria Trafka to discuss her interest in doing contract design work for Emerge. (PSUF ¶ 487; DRPS ¶ 487.) Marotta had originally been introduced to Trafka in 2008, through her husband Richard Brown, and was aware that Trafka was formerly a manufacturing engineer for Synthes at its Monument, Colorado facility. (PSUF ¶ 490 DRPS ¶ 490.) Marotta contacted Trafka in October 2009 because no one at Emerge had engineering knowledge and Trafka had compiled an extensive engineering background. (PSUF ¶ 490 DRPS ¶ 491.)

Thereafter, in November 2009, Marotta and Stassen developed a Private Placement Memorandum for Emerge to use with investors, which identified Brown as a “founder,” “majority owner,” “Chief Executive Officer,” “President,” and “Chairman of the Board.” (Pis.’ Appx. 292.) Brown and Marotta had also developed a listing of potential Emerge products and customers. (PSUF ¶ 496; DRPS ¶ 496.) In the twenty-first version of the draft, the memorandum stated, under “Company Ownership,” that “Emerge was established in January 2010 by founders John Marotta, Zack Stas-sen and Eric Brown whom are company owners.” (Pis.’ Appx. 216.) The business plan also contained a table and chart of “milestones” reflecting a formation date in January 2010 and targeted dates for other objectives running from February 2010 to November 2010. (Id.) On December 2, 2009, however, Stassen sent Marotta an “initial draft of the Company Overview for the Investment Memorandum,” which contained no reference to Brown under the Management Team. (PSUF ¶¶ 507-08; DRPS ¶¶ 507-08; Pis.’ Appx. 712.) Indeed, as of December 14, 2009, it was determined that Brown could no longer participate in the company because of the national scope of his AVP NCA with Synthes. (PSUF ¶ 528; DRPS ¶ 528.)

The record reflects that Stassen and Marotta, on behalf of Emerge, met with several Synthes customers in the December 2009 time frame. Both Stassen and Marotta met with Denise' Rosnick from Denver Health in an effort to become Denver Health’s supplier for low-cost trauma products. (PSUF ¶ 510-14; DRPS ¶ 510-14.) In addition, Stassen and Marotta began working with Dr. Morgan, also from Denver Health, with respect to the concepts portrayed in Emerge’s business plan. (PSUF ¶¶ 520-23.) In connection with Stassen and Marotta’s meetings with Dr. Morgan, Marotta expensed his meals to Synthes under the guise of meetings with other Synthes clients. (PSUF ¶¶ 532-38; DRPS ¶¶ 532-38.) Marotta also met with Dr. Motzkin regarding Motzkin’s interest in investing in Emerge-meetings which were likewise subsidized by Synthes. (PSUF ¶ 556-57, 566-71; DRPS ¶ 556-57, 566-71.)

Emerge’s Articles of Incorporation were filed with the Colorado Secretary of State on January 13, 2010, and they listed Emerge’s principal executive office as Marotta’s home address in Denver, Colorado. (PSUF ¶ 545-46; DRPS ¶¶ 545 — 46.) The Initial Written Consent of the Board of Directors indicated that Marotta and *651 Stassen were 50/50 owners of Emerge and that each had invested $5,000. (PSUF ¶ 548, DRPS ¶ 548.) Stassen was listed as Chief Executive Officer, President, Chief Operating Officer, Chief Financial Officer, and Secretary of Emerge. (PSUF ¶ 549; DRPS ¶ 549.)

On February 9, 2010, Marotta emailed Stassen’s father identifying Synthes employees Bryan Murray, Brennen Warren, and Colin Brown as potential employees for Sonoma Orthopedics. (PSUF ¶ 578-79; DRPS ¶¶ 578-79.) Thereafter, on February 11, 2010, a meeting was scheduled between Marotta and Powell. (PSUF ¶ 588; DRPS ¶ 583.) Powell emailed his resume to Marotta’s personal account. (PSUF ¶ 584; DRPS ¶ 584.) Marotta then forwarded the resumes of several Synthes people to Sonoma for consideration. (PSUF ¶ 590; DRPS ¶ 590.)

Notably, throughout 2009 and 2010, Marotta submitted his telephone bills to Synthes and Synthes reimbursed him for these payments. (PSUF ¶ 603-04; DRPS ¶¶ 603-04.) In addition, Marotta submitted an expense report to Synthes for reimbursement of his February communication expenses, including for wireless numbers used, in part, for Emerge purposes. Synthes also reimbursed Marotta for these expenses. (PSUF ¶¶ 605-08; DRPS ¶¶ 605-08.)

On March 15, 2010, Marotta submitted his official letter of resignation to Brown, his Synthes Area Vice President and supervisor. (PSUF ¶ 614; DRPS ¶614.) That same day, he submitted an inventory check out memorandum to Synthes, effective April 15, 2010, and then forwarded both the letter and memorandum to Stas-sen and Knight. (PSUF ¶¶615, 617; DRPS ¶¶ 615, 617.) After submission of his resignation, but while still employed by Synthes, Marotta had two separate meetings with Synthes sales management personnel, Tony Randazzo and Ken Carpenter, at which time he suggested that he was going to work with his uncle. (PSUF ¶¶ 618-19; DRPS ¶¶ 618-19; Pis.’ Appx. 18, Marotta Dep., 116:18-117:7, June 26, 2013.) Specifically, he stated that “I will be working for one of my Uncle’s companies, he is a Health Care Services guy. It’s a good move for me. One of his companies in which he is on the board of is in Tennessee called Centerre.” (PSUF ¶ 620; DRPS ¶ 620; Pis.’ Appx. 18, Marot-ta Dep. 113:16-21, June 26, 2013.) Brown knew that Marotta “was planning to join Emerge and that Emerge’s plan was to enter the orthopedic market focused on drill bits and cannulated screws.” (Pis.’ Appx. 24, Brown Statement ¶ 93, PSUF ¶¶ 621-22; DRPS ¶¶ 621-22.) Brown, however, never told anyone at Synthes what Marotta’s plans were. (PSUF ¶ 623; DRPS ¶ 623.)

As of March 26, 2010, Emerge’s initial round of financing brought in approximately $2 million. (PSUF ¶¶ 630-31, DRPS ¶¶ 630-31.) Around that time, Emerge sent physical samples of Synthes products to Orchid for reverse engineering and design of Emerge’s initial product offerings of drill bits, guide wires, and cannulated screws. (PSUF ¶¶ 632-33; DRPS ¶¶ 632-33.) In addition, Trafka sent Marotta information regarding the manufacture of reaming rods, including information regarding the production of Synthes reaming rods. (PSUF ¶ 634; DRPS ¶634.) By late June 2010, Orchid was evaluating samples of reaming rods and working on reverse engineering Synthes reaming rods on behalf of Emerge. (PSUF ¶ 635; DRPS ¶ 635.)

Multiple other steps were taken by Mar-otta and Stassen to finalize Emerge’s start up in March 2010. The two men toured potential office space, obtained business cards, and purchased office supplies. *652 (PSUF ¶ 636; DRPS ¶ 636.) Marotta executed a form W-4 on April 1, 2010, listing Emerge Surgical, Inc. as his employer. (PSUF ¶ 637; DRPS ¶ 637.) During the rest of April 2010, Marotta had communications with multiple Synthes employees, often in connection with the employees’ efforts to obtain new opportunities outside of Synthes. (PSUF ¶¶ 639-48; DRPS ¶¶ 639-48.)

3. Emerge’s Business Plans and Investor Materials (Pre-April 2010)

a. The Private Placement Memorandum

Marotta was personally involved in the preparation and finalization of Emerge’s Private Placement Memorandum (“PPM”) for its initial round of financing, which occurred during the course of Marotta’s employment with Synthes. (PSUF ¶¶ 649-51; DRPS ¶¶ 649-51.) Marotta and Stassen understood that the PPM needed to be accurate and truthful. (PSUF ¶¶ 652-56; DRPS ¶¶ 652-56.) The description of the business indicated that Emerge “plans to take a new approach to distribution, focusing more on hospital administration and department heads rather than marketing to individual surgeons.” (Pis.’ Appx. 166; PSUF ¶664; DRPS ¶ 664.) Emerge’s initial plan was to target specific products in specific segments of the orthopedic implant industry, referred to as “unbundling.” (PSUF ¶ 667; DRPS ¶ 667.) ■ Emerge’s target market was the entire $92 billion U.S. device market, but it chose to initially focus on the $2 billion trauma segment of the orthopedic device market. (PSUF ¶¶ 668-69; DRPS ¶¶ 668-69.) The PPM identified Emerge’s initial products as representing a potential $500 million market. (PSUF ¶ 670; DRPS ¶ 670.) In order to accomplish this goal, the PPM noted that “it is our observation that hospitals have been and continue to decrease the presence of sales representatives in the hospital in an effort to disin-termediate the sales reps with the physicians.” (PSUF ¶ 672; DRPS ¶ 672.) This concept of disintermediation involved selling to hospitals directly and. attempting to take sales representatives and physicians out of purchasing decisions. (PSUF ¶ 673; DRPS 673.) Under the “Initial Products” section of the PPM, Emerge identified its initial product portfolio as cannulated screws, drill bits, and guide wires. (PSUF ¶ 675; DRPS ¶ 675.)

The PPM identified Marotta and Stas-sen as 50/50 owners in Emerge as of January 30, 2010. (PSUF ¶ 680; DRPS ¶ 680.) The PPM also listed Dr. Steven Morgan, John Lewis (Marotta’s uncle), and Stas-sen’s father as advisors. (PSUF ¶ 681, DRPS ¶ 681.) Notably, Dr. Morgan is currently a director of Emerge and was granted additional options for his involvement as a director and his duties as a medical advisor. (PSUF ¶ 682; DRPS ¶ 682.) As part of the potential risks for investors, the PPM contained a discussion of Marotta’s RM NCA. (PSUF ¶ 683; DRPS ¶ 683.) It did not, however, identify or discuss Marotta’s SC NCA or NDA or Synthes’s written employment policies. (PSUF ¶ 686; DRPS ¶ 686.) Notably, Marotta did not provide his SC NCA or NDA or Synthes’s employment policies to Stassen or Knight for review and had not even thought about the NDA until after Synthes filed suit. (PSUF ¶¶ 687, 689; DRPS ¶¶ 687, 689.)

During Emerge’s second round of financing, Emerge circulated another Private Placement Memorandum that contained language characterizing certain aspects of Emerge’s business model as “new” and “unique.” (PSUF ¶ 692; DRPS ¶ 692.) This second Private Placement Memorandum was distributed to existing investors, some of whom *653 were physicians, as well as new physicians who had not previously- invested. (PSUF ¶ 693; DRPS ¶ 693.)

b. Investor Presentations

In January 2010, Emerge gave an investor presentation in order to attract investor interest in the organization. (PSUF ¶¶ 694-95; DRPS ¶¶ 694-95.) The stated “Corporate Goal” in the presentation indicated that “Emerge Surgical will be the first medical device company willing to partner with hospitals to provide true and meaningful cost savings while at the same time delivering product of the highest quality.” (Pis.’ Appx. 436; PSUF ¶696; DRPS ¶ 696.) The presentation identified a “Unique Approach to Product Distribution” and noted that Synthes was one of Emerge’s competitors. (PSUF ¶¶ 697-98; DRPS ¶¶ 697-98.)

The slide entitled “Implementation” depicted how a hospital manages product inventory and how Emerge fits in. (PSUF ¶ 699; DRPS 699.) The photographs on this slide contained photographs of Synthes Inventory Management System (SIMS) and dividers with Synthes’s logo on them. (PSUF ¶ 700; DRPS ¶ 700.)

In order to have someone from the medical community represented and to show that the organization had credible business minds behind it, Dr. Morgan was listed as an advisor on the final investor presentation. (PSUF ¶¶ 702-03; DRPS ¶¶702-03.) Stassen testified that Dr. Morgan’s listing may have helped raise money. (PSUF ¶ 704; DRPS ¶ 704; Stassen Dep. 203:10-15.)

c. Additional Statements Regarding Emerge’s Business Model

Marotta has stated that “Emerge has devised a new approach to the sales of Implantation Hardware providing the American public with like:numbered, [sic] product that is similar to the Synthes Implantation Hardware and that can be stored alongside Synthes’ sophisticated orthopedic implants and used with Synthes’ inventory management systems and surgical sets.” (Pis.’ Appx. 7, Marotta Answer to Am. Compl. ¶ 156; Pis.’ Appx 2, Emerge Answer to Am. Compl. ¶ 156.) A press release of April 4, 2011 characterized Emerge as offering “the industry’s first-ever line of high-quality generic implants and instruments.” (Pis.’ Appx. 141; PSUF ¶ 708; DRPS ¶ 708.) In' a subsequent press release dated April 7, 2011, Marotta indicated that Emerge’s “supply chain model offers hospitals and physicians high-quality products at significantly lower cost, changing the way medical device sales are approached ...” (Pis.’ Appx. 167; PSUF ¶ 709; DRPS ¶ 709.)

4. Emerge’s Finding of Investors and Raising Money

Beginning in January 2010, Marotta was personally involved in Emerge’s fundrais-ing efforts and contacted a number of potential investors regarding the formation of Emerge. (PSUF ¶ 710; DRPS ¶ 710.) From January 2010 to March 2010, Marot-ta and Stassen were focused on finding investors for Emerge’s initial round of financing. (PSUF ¶ 711; DRPS ¶ 711.) In these efforts, Marotta used the Private Placement Memorandum. (PSUF ¶ 712; DRPS ¶ 712.) Prior to leaving Synthes, Marotta, on behalf of Emerge, targeted a lengthy list of orthopedic surgeons regarding investment in Emerge. (PSUF ¶ 713; DRPS ¶ 713.) Dr. Morgan also became involved in soliciting investors on behalf of Emerge. (PSUF. ¶ 714; DRPS ¶ 714.) Synthes Sales Consultant Brennen Warren also introduced Marotta and Stassen to Dr. David Laverty for purposes of discussing Emerge and soliciting potential investments in Emerge. (PSUF ¶ 715; DRPS ¶ 715.) Ultimately, twenty-one orthopedic surgeons invested in Emerge' during *654 Emerge’s initial round of financing in early 2010. (PSUF ¶ 716; DRPS ¶ 716.)

Aside from speaking with surgeons, Marotta was also involved in discussions with Synthes employees — including Colin Brown, Mike Saunders, Andy White, Craig Lynn, and Brian Hahn- — regarding potential investments in Emerge. (PSUF ¶ 717; DRPS ¶ 717.) All of them or their spouses, with the exception of Brian Hahn, invested in Emerge in the initial round of financing. (PSUF ¶ 718; DRPS ¶718.) Synthes later terminated these Synthes employees because it believed that investment in a privately-held competing business such as Emerge constituted a violation of Synthes’s policies. (PSUF ¶ 719; DRPS ¶ 719.)

5. Early Design and Development of Emerge Product

As noted above, in January 2010, Marot-ta had discussions with Orchid about contracting for design and manufacturing services for Emerge. (PSUF ¶ 721; DRPS ¶ 721.) Stassen was aware that Orchid was a vendor of Synthes at that time. (PSUF ¶ 724; DRPS ¶ 724.) Emerge and Orchid discussed the fact that Synthes’s product would be the “gold standard” for the design and development of Emerge product. (PSUF ¶725; DRPS ¶725.) Marotta and Orchid representative Brian McLaughlin exchanged a series of emails between January 26, 2010 and February 24, 2010, regarding product designs for Emerge. (PSUF ¶¶ 727-32; DRPS ¶¶727-32.) .On March 16, 2010, Orchid sent Emerge a proposal on which Marot-ta’s approval appears on behalf of Emerge as CEO. (PSUF ¶¶ 737-38;- DRPS ¶¶ 737-38.) The proposal required payment of an $8,000 deposit, which Marotta believes he paid and for which he was later reimbursed by Emerge. (PSUF ¶ 739; DRPS ¶ 739.)

Prior to April 15, 2010, Emerge sent physical samples of Synthes cannulated screws to Orchid to assist in reverse engineering those products and begin the design of Emerge’s initial product offerings. (PSUF ¶ 740; DRPS ¶ 740.) The process of reverse engineering cannulated screws involved, in part, looking at the screw samples provided by Emerge, taking measurements from those samples, looking at industry standards for screws, and then creating CAD models and drawings. (PSUF ¶ 742; DRPS ¶ 742.) Orchid had also begun working on draft versions of prints for Emerge’s initial product offerings of drill bits, guide wires, and cannu-lated screws, and was in communication with Emerge regarding those drawings. (PSUF ¶¶ 745-46; DRPS ¶¶ 745^6.) The design prints Emerge ultimately submitted to the FDA in the 510(k) submission for its “cannulated screw fixation system” are dated March 29, 2010, which is prior to the termination of Marotta’s employment with Synthes. (PSUF ¶ 747; DRPS ¶ 747.)

On August 24, 2010, Orchid emailed Marotta and Stassen regarding the possible development of an “external fixation” system and attached a Synthes technique guide for a large external fixation system. ' (PSUF ¶¶ 748-49; DRPS ¶¶ 748-49.) In addition, on September 16, 2010, Orchid sent Marotta and -Stassen a proposal for the design and development of locking screw's, which was also something being considered and discussed at Emerge. (PSUF ¶¶ 750-51; DRPS ¶¶ 750-51.) On August 30, 2011, however, Emerge received a letter from the CEO of Orchid, Michael E. Miller, informing Emerge that Orchid would fulfill existing contractual agreements with Emerge, but would not take any additional orders, as follows:

Over the past several weeks, Orchid has had a unique 'opportunity to examine its working relationship with Emerge. Sur- *655 gieal. After careful review of products and services provided to Emerge Surgical, Orchid Orthopedics has concluded that it is in Orchid’s best interest to decline any further business with Emerge Surgical. Orchid appreciates Emerge selecting our company to perform certain manufacturing and design services. However, as stated above, Orchid must respectfully decline any additional orders for products and services. Orchid will honor its contractual agreements to fill any purchase order that has been acknowledged as of August 30, 2011.

(Pis.’ Appx. 624; PSUF ¶ 752; DRPS ¶ 752.)

E. Emerge’s Alleged Use of Synthes Products and Information

1. Acquisition and Use of Synthes Products

As of at least early April 2010, Emerge was shipping Synthes products to Orchid. (Pis.’ Appx. 178; PSUF ¶753; DRPS ¶ 753.) Marotta had a significant volume of Synthes-branded product in his home garage. (PSUF ¶ 758; DRPS ¶ 758.) By the time Marcy Slone joined Emerge in early 2010, Emerge already had obtained Synthes product that was being stored at the Emerge office and covered with a black curtain. (PSUF ¶¶ 760-61; DRPS ¶¶ 760-61.) When Powell later joined Emerge in September 2010, he brought some Synthes product with him. (PSUF ¶ 762; DRPS ¶ 762.) Even before Powell officially joined Emerge, however, Powell provided product to Emerge while he was employed with Sonoma Orthopedic Products, Inc. (PSUF ¶ 762; DRPS ¶763.) Later in 2010, Emerge, through Marotta and Powell, asked for sample Synthes product from a number of Synthes representatives, including: Jason Fowler, Colin Brown, Josh Gorman, Blake Whitson, Brad Chun, Jason Ramirez, and Scott Jones. (PSUF ¶¶ 764-65; DRPS ¶764-65.) Only Gorman, Fowler, and Brown provided any such product. (PSUF ¶¶ 766, 768; DRPS ¶¶ 766, 768.)

Emerge does not have any records documenting the origins of the tested product, but Marotta believed that the Synthes product sent to Orchid came from Josh Gorman, Jason Fowler, and Colin Brown. (PSUF ¶ 772; DRPS ¶772.) In connection with the 510(k) submission for Emerge’s “cannulated screw fixation system, Orchid conducted engineering testing in the summer of 2010 on the Synthes products that were selected by Emerge to be the predicate devices.” (PSUF ¶ 774; DRPS ¶ 774.)

2. Acquisition, Use, and Disclosure of Synthes’s Conñdential and Proprietary Information

The record reflects that Emerge received Synthes confidential and proprietary information from several sources, including Marcy Slone, who was later terminated by Emerge on January 27, 2011, and Preston Baus, a former Synthes employee. (PSUF ¶ 796; DRPS ' ¶ 796; Pis.’ Appx. 29, 503, 504, 507, 514.) This information took multiple different forms.

a. Information Related to Synthes’s Manufacturing Costs

On April 17, 2010, Marotta emailed Baus requesting that Baus send him “Synthes manufacturing costs,” to which Baus replied with an Excel file containing Synthes manufacturing costs. (Pis.’ Appx. 504; PSUF ¶¶ 810-11; DRPS ¶¶ 810-11.) Synthes contends that its manufacturing costs constitute highly confidential information. (PSUF ¶ 812.) At the time Baus sent the Excel spreadsheet, Emerge was in the “design input phase,” which is the first step in developing product so that *656 Emerge could have it manufactured. (PSUF ¶ 814; DRPS ¶ 814.)

b. Information Related to Synthes’ External Fixation and LCP Products

On August 2, 2010, Marotta emailed Slone various design drawings, including drawings for Synthes external fixation products. (PSUF ¶ 815; DRPS ¶815; Pis.’ Appx. 508, 513.) Marotta had reT ceived these drawings from Baus on July 17, 2010, while Baus was still employed by Synthes. • (PSUF ¶ 817; DRPS ¶ 817.) Marotta testified that he assumed Baus should not have been giving him this information. (Pis.’ Appx. 3, Marotta Dep., 38:4-5, July 5, 2011; PSUF ¶ 819, DRPS ¶ 819.) Nevertheless, these documents were ultimately circulated among Emerge employees. (PSUF ¶ 820; DRPS' ¶ 820.)

Around that same time in August 2010, Emerge was exploring the possibility of producing a limited number of external fixation components and locking screws as additional product offerings, and they received proposals for their design and development from Orchid. (PSUF ¶¶ 821-22; DRPS ¶¶ 821-22.) By that point in time, Emerge had already obtained certain external fixation prints from Preston Baus. (PSUF ¶ 824; DRPS ¶ 824.)

c. Information Related to Synthes’s Critical Features, Dimensions, and Tolerances

On July 17, 2010, Baus also provided Marotta with a Synthes Critical Features document, which bore a Synthes logo and included critical features, dimensions, and tolerances for certain Synthes products, including locking, non-locking, and cannu-lated screws. (PSUF ¶ 826; DRPS ¶ 826.) Synthes has characterized its Critical Features document as highly confidential and trade secret information belonging to Synthes. (PSUF ¶827, DRPS ¶ 827.) Slone agreed that the specific tolerance information on the Synthes Critical Features document is not something Synthes would want a competitor to obtain. (PSUF ¶ 829; DRPS ¶ 829.)

This Critical Features document was circulated among Emerge employees and, in addition, was sent by Slone to Orchid. (PSUF ¶¶ 830-31; DRPS ¶¶ 830-31.) In July 2010, when Orchid received this document, Orchid shredded it because it “looked like something [Orchid] shouldn’t have had” and was something that “wasn’t in the public domain.” (Pis.’ Appx. 489, Dep. of Ron Litke (“Litke Dep.”), 132:7-134:7, Sep. 16, 2011.) Slone indicated that she then altered the Synthes Critical Features document by removing information related to products other than cannulated screws, changing the font, removing the Synthes employee email header, and substituting an Emerge .logo for the Synthes logo. (PSUF ¶ 835; DRPS ¶835.) The document, however, still contained some critical features for cannulated screws. (PSUF ¶ 837; DRPS ¶ 837.) Notably, Emerge claims that Slone altered this document without Emerge’s consent. (PSUF ¶ 835; DRPS ¶ 835.) Slone then sent the altered document to Ron Litke at Orchid, stating “Here is a brief document outlining some critical features for the cannulated screws. It may be helpful at some point.” (Pis.’ Appx. 520.) Also on July 21, 2010, Emerge sent the same altered document, entitled “Emerge Critical Features 7-21-2010.doc,” to Tom Berg and Steve Sorlie at Mountain Manufacturing. (PSUF ¶ 840; DRPS ¶ 840.) Mountain Manufacturing is a vendor Emerge had initially used for the prototyping of Emerge’s cannulated screws. (PSUF ¶ 842; DRPS ¶ 843.)

Around this time, Emerge was making revisions to its initial cannulated screw design. (PSUF ¶¶ 845-46; DRPS ¶¶ 845-46.) In the summer and early fall of 2010, there were differences between Emerge’s *657 screws as compared to the Synthes screws. (PSUF ¶ 847; DRPS ¶ 847.). Emerge indicated concern to Orchid about these differences in light of its strategy to have its products “blend seamlessly with the Synthes product.” (PSUF ¶848; DRPS ¶ 848.) Orchid, in turn, expressed concern about other design items and, as a result, Orchid redesigned Emerge’s screws to eliminate differences and make them appear more like Synthes screws. (PSUF ¶¶ 849-51; DRPS ¶¶ 849-51.) Also during this time, there were communications among Emerge, Orchid, and Mountain Manufacturing regarding differences in screw samples and prints in connection with the prototyping of Emerge’s cannu-lated screws. (PSUF ¶ 852; DRPS ¶ 852.) Based on an Emerge-issued Engineering Change Notice, Emerge’s cannulated screw drawings were then revised. (PSUF ¶¶ 853-54; DRPS ¶¶ 853-54.)

d. Information Related to Synthes’s Engineering Speciñcations

In April 2012, Emerge produced in discovery five Synthes documents containing Synthes engineering specifications. (PSUF ¶ 856; DRPS ¶ 856.) These documents contain standards and specifications for, among other things, the design and dimensioning, tolerancing, manufacturing, finishing, and inspection of certain Synthes products. (PSUF ¶ 858; DRPS ¶858.) According to Stassen, these documents, in. their native electronic format, came to be in Emerge’s possession when Stassen transferred these documents from a thumb drive used by Trafka to perform her work for Emerge to his Emerge laptop. (PSUF ¶ 861.) Stassen then transferred the documents from his Emerge laptop onto a new thumb drive and returned both drives to Trafka. (PSUF ¶ 862.) Trafka, however, denies that the files were transferred from her thumb drive. (DRPS ¶¶ 861-62; Traf-ka-Dep. 207:1-208:11.)

e. Information Related to Synthes’s Cortical and Cancellous Screws

In the spring of 2010, Emerge and Ham-mill Manufacturing began discussions about the manufacture of certain products, and Marotta met with John Hammill. (PSUF ¶ 870; DRPS ¶870.) Initially, Emerge’s discussions focused on quotes for the manufacture of Emerge’s drill bits, guide wires, and cannulated screws, with Emerge sending Hammill Manufacturing the latest versions of all the screw and washer prints Orchid had prepared on April 30, 2010. (PSUF ¶874; DRPS ¶ 874.) On May 19, 2010, however, Ham-mill Manufacturing emailed Emerge that it had “decided to pass” on Emerge’s manufacturing request. (PSUF ¶ 875; DRPS ¶875.) Nonetheless, Marotta met with John Hammill again on May 25, 2010 to discuss budgetary pricing for the manufacturing of Emerge screws and, subsequently, on June 3, 2010, Emerge sent out prints to John Hammill. (PSUF ¶¶ 876-81; DRPS ¶¶ 876-81.) Ultimately, in mid-June 2010, Hamill Manufacturing sent Emerge a quote for the manufacture of cancellous screws. (PSUF ¶¶ 883-85; DRPS ¶¶ 883-85.) The quote file had six drawings for cancellous and cortical screws, each of which contained Synthes’s logo and an admonition that, “This drawing and/or the electronic model used to create it are the property of Synthes and may not be reproduced by any means or transmitted to third parties without prior written permission of Synthes. All rights reserved.” (Pis.’Appx. 577; PSUF ¶¶ 886, 891, 895; DRPS ¶¶886, 891, 895.) Ham-mill Manufacturing testified that these drawings must have been received from Emerge. (PSUF ¶¶ 887-90, 892-94; DRPS ¶¶ 887-90; 892-94.) Marcy Slone admits that before sending paper copies of these Synthes cortical and cancellous screw prints to Hammill Manufacturing, *658 she had obscured certain information on them with white labels and correction tape. (PSUF ¶ 897;' DRPS ¶ 897.)

f.Information Related to Synthes’s Usage Data in Emerge’s Early Accounts

On May 19, 2010, Karen Foster, a Synthes sales support specialist in West Chester, Pennsylvania, emailed to Chance Leonard an attachment containing Synthes’s usage reports for multiple facilities within the Catholic Healthcare West system, including Chandler Regional Hospital and Mercy Gilbert Medical Center. (PSUF ¶ 906; DRPS ¶ 906.) The following day, Foster emailed Leonard the 2008 and 2009 usage files for multiple Banner Health Facilities. (PSUF II907; DRPS ¶ 907.)

In the early summer of 2010, Marotta traveled to Arizona to meet with investors and potential customers of Emerge, and recalls visiting Leonard around this time. (PSUF ¶¶ 909-10, 913 DRPS ¶¶ 909-10, 913.) On May 1, 2010, Leonard executed an Emerge Confidentiality and Non-Disclosure Agreement. (PSUF ¶ 911; DRPS- ¶ 911.) At some point in 2010, Emerge came to possess the identical usage data that Foster had prepared for Leonard. (PSUF ¶ 914; DRPS hTls.’ Appx 655.) Marotta, as Emerge’s corporate designee, had no information as to how Emerge came into possession of Synthes usage and pricing information for these hospitals. (PSUF ¶ 920; DRPS ¶ 920.) According to Stassen, however, following Marotta’s May 2010 trip to Arizona, Marotta gave Stassen a thumb drive containing Excel spreadsheets, which provided, among other things, usage data for Synthes products for approximately fifteen hospitals and ambulatory surgery centers in Arizona, information on the sales volume of particular Synthes products over a two-year time period, and the specific pricing offered to those institutions for those specific products at those times. (PSUF ¶¶ 921-22; DRPS ¶¶ 921-22.)

Marotta did not know if this usage data was used by Emerge in any way during the summer of 2010. (PSUF ¶ 923; DRPS ¶ 923.) According to Stassen, however, he used the Synthes Arizona usage data “to assess sales potential of various products and to determine the volume of various products that Emerge might manufacture” because “at this time, Emerge was in the process of determining what products to produce and what quantities to produce.” (Pis.’ Appx. 20, Stassen Decl. ¶ 69; PSUF ¶927; DRPS ¶ 927.) According to Slone, she used the Arizona usage data often throughout her employment with Emerge “to. determine what quantities of product to manufacture and order.” (PSUF ¶ 930; DRPS ¶ 930.) Powell also acknowledged using Arizona usage data in his role at Emerge. (PSUF ¶ 932; DRPS ¶ 932.) Ultimately, Emerge’s first accounts in late 2010 and early 2011 included Banner Gateway, Chandler Regional, and Mercy Gilbert. (PSUF ¶ 933; DRPS ¶ 933.)

g.Information Related to Synthes’s Cannulated Screw Comparison Chart

During his employment with Synthes, Marotta obtained a chart listing various dimensions and characteristics for Synthes’s cannulated screws entitled “Can-nulated Screw Comparison Chart.” (PSUF ¶ 934; DRPS ¶ 934.) He kept it in a folder a maintained for competitive product. (PSUF ¶ 935; DRPS ¶ 935.) On March 23, 2010, Marotta sent the “Cannu-lated Screw Comparison Chart” to Orchid to aid Orchid in the development of Emerge’s cannulated screw designs. (PSUF ¶ 936; DRPS ¶ 936.)

h.Synthes Documents Marotta Emailed to His Personal Email Address

While still employed with Synthes, Mar-otta sent various Synthes information to *659 his personal email account, including: Synthes Fall 2009 new product pipeline and plan; Synthes 2009 usage and pricing data for Centura Health; Synthes November 2008 to October 2009 usage and pricing data for Denver Health; October 19,' 2009 pricing proposal and email negotiations with Access Mediquip; October and November 2009 P & L reports; Synthes’ price increase information (including an explanation of the differences from the prior year’s increase); and Marotta’s contacts, calendar, tasks, and notes from his Synthes Outlook account. (PSUF ¶ 937; DRPS ¶ 937.) Marotta could not recall the reason for forwarding these documents to his personal email account. (PSUF ¶¶ 938-39; DRPS ¶¶ 938-39.)

i. Marotta’s & Powell’s Retention of Synthes’s Emails

After the initiation of litigation in March 2011, Emerge produced numerous emails that were sent or received during Marot-ta’s and Powell’s employment with Synthes using Marotta’s and Powell’s Synthes email accounts that each had retained after their resignations from Synthes and during their employment with1 Emerge. (PSUF ¶ 946; DRPS ¶ 946.) These emails included a presentation of an evaluation done on Synthes’s performance in the surgery center market, as well as an email concerning Synthes screws on consign-' ment at Denver Health. (PSUF ¶¶ 947, 949; DRPS ¶¶ 947, 949.)

j. Information Related to Synthes’s Strategic Business Acquisition Discussions

On January 10, 2010, Ken Carpenter, one of the Synthes sales management personnel, emailed to Brown and other Synthes Area Vice Presidents a Business Development Discussion Slide Deck noting that the presentation was “Extremely Confidential! ! !” (PSUF ¶ 952; DRPS ¶ 952.) This slide deck contained reference to So-noma Orthopedics and Cayenne Medical, both of which were part of Stassen’s father’s partnership’s portfolio. (PSUF n 953-54; DRPS ¶¶ 953-54.) At the end of January 2010, Stassen had lunch with Brown, at which time Brown showed Stas-sen a PowerPoint presentation containing Synthes’s confidential information regarding strategic acquisition targets. (PSUF ¶ 956; DRPS ¶ 956.) Stassen indicated that he recognized two or three of the companies and remarked that Synthes might be targeting those companies because they were part of his father’s partnership portfolio. (PSUF ¶ 957; DRPS ¶ 957.) Shortly thereafter, Stassen’s father emailed him regarding the names on the list and, although Stassen understood it to be “super top secret,” he went on to describe the information he saw in the presentation. (PSUF ¶¶ 958-60; DRPS ¶¶ 958-60.) Stassen’s father then shared this information with Jim Hart, the former CEO of Cayenne Medical. • (PSUF ¶ 961; DRPS ¶ 961.)

F. Emerge Obtains FDA Clearance

On August 17, 2010, Emerge filed a 510(k) submission with the FDA for its “cannulated screw fixation system.” (PSUF ¶ 962; DRPS ¶ 962.) Thereafter, on November 23, 2010, Emerge obtained FDA 510(k) clearance for this system. (PSUF ¶ 963; DRPS ¶ 963.) The FDA determined that “the device is substantially equivalent (for the indications for use stated in the enclosure).” (Pis.’ Appx. 483; PSUF ¶ 964; DRPS ¶ 964.) That indication for use provided that “The Emerge Cannulated Screw Fixation System is intended to provide bone fixation in the management of fractures of both small and large bones and bone fragments, including those in the foot, patella, ankle, wrist, and elbow and arthrodesis of the foot, wrist, and elbow and small and long bone osteo- *660 tomies.” (Pis.’ Appx. 483; PSUF ¶ 965; ■ DRPS ¶ 965.) A 510(k) review does not require a finding that a new device be identical to a predicate device, but rather “involves an assessment of whether the new device is at least as safe and effective as the predicate.” (PSUF ¶¶ 966-67; DRPS ¶¶ 966-67.)

Emerge’s drill bits and guide wires have not been cleared by the FDA under the 510(k) process and were not the subject of a 510(k) submission. (PSUF ¶ 968; DRPS ¶ 968.) In August 2012, Emerge submitted a 510(k) submission for its solid bone screw line. (PSUF ¶ 969; DRPS ¶ 969.) An email from an FDA reviewer stated that, based on a review of that submission, it could not “determine if the device is substantially equivalent to a legally marketed predicate device based solely on the information you provided.” (Pis.’ Appx. 607; PSUF ¶ 970; DRPS ¶ 970.) Following the FDA’s request for additional information, Emerge indicated that its intent was to use the bone screws “to provide bone fixation in the management of osteo-tomies, fusions, and fractures of metaphy-sis and diaphysis of both small and large bones in the pelvis. The screws may be used alone, or with washers.” (PSUF ¶¶ 971-75; DRPS ¶¶ 971-75.)

Emerge has considered additional product offerings similar to those sold by Synthes including, but not limited to, cortical and cancellous bone screws and a locking one-third tubular plate system. (PSUF ¶ 976; DRPS ¶ 976.) Ultimately, on December 12, 2012, the FDA approved Emerge’s solid bone screws and, on July 3, 2013, a “locking one-third tubular plate system.” (PSUF IT 977; DRPS ¶977.). The bone screws were cleared with the indication for use described above. (PSUF ¶ 978; DRPS ¶ 978.) The locking one-third tubular plate system was cleared with the following indication for use: “fixation of fractures, osteotomies, and non-unions of the clavicle, scapula, olecranon, humerus, radius, ulna, pelvis, distal tibia, and fibula, including osteopenic bone.” (PSUF ¶ 979 (citing publicly available documents); DRPS ¶ 979.) Emerge also has additional products in development at this time. (PSUF ¶ 980; DRPS ¶ 980.)

G. Emerge’s Pilot Customers

Emerge’s initial sales strategy was “to get some customers that were early adopters in the new business model” so that Emerge could “prove the concept” and “then scale it up like any business.” (Pis.’ Appx. 18, Marotta Dep. 252:1-13, June 26, 2013.) Marotta agreed that going into a health system at the “C-Suite” level had the potential to open up sales throughout that particular health system. (PSUF ¶ 983; DRPS ¶ 983.)

1. Banner Health

Banner Gateway Medical Center (“Banner Gateway”) in Gilbert, Arizona was Emerge’s first customer. (PSUF ¶ 984; DRPS ¶ 984.) Marotta obtained approval at Banner Gateway for a trial of Emerge product and understood that if Emerge was successful there, it might open up the rest of the Banner Health System to Emerge. (PSUF -¶ 985-86; DRPS ¶¶ 985-86.) Currently, and prior to April 15, 2010, Banner Health had locations in multiple states, including Colorado. (PSUF ¶¶ 987-88; DRPS ¶¶ 987-88.) Those in Colorado were in Marotta’s region during his last two years as Regional Manager of the Rocky Mountain Region. (PSUF ¶ 989; DRPS ¶ 989.)

Banner Health was originally identified as one of Emerge’s targets in November 2009, and was proposed to the- Emerge Board in October 2010. (PSUF ¶¶ 991-94; DRPS ¶¶ 991-94.) In that presentation, Emerge indicated that.it had leads with the Banner Health facilities in Colorado *661 and described Banner Gateway Medical Center, as well as several other facilities, as a “Marotta Hospital.” (PSUF ¶¶ 996-97; DRPS ¶¶ 996-97.)

Emerge prepared a PowerPoint presentation for Banner Health and, in September 2010, Marotta and Powell met with Mike Hatton, Inventory Coordinator at Banner Gateway Medical Systems in Arizona, to present Emerge products as a business opportunity for the Banner Gateway system. (PSUF ¶¶ 998, 1001; DRPS ¶¶ 998, 1001.) Hatton then emailed various corporate individuals at Banner Health, including Doug Bowen and Dee Whittington, vouching for the professional reputation of Mr. Marotta and touting their corporate model that he believed would work for Banner Health. (PSUF ¶ 1002; DRPS ¶ 1002.) On September 24, 2010, Marotta and Bowen exchanged email and phone correspondence confirming'the existence of a client relationship. (PSUF ¶ 1005; DRPS ¶ 1005.) Emerge shipped its first product to Banner Gateway Medical Center on September 30, 2010, making it the first sale of product by Emerge. . (PSUF ¶¶ 1009-10; DRPS ¶¶ 1009-10.)

Emerge then followed up with Dee Whittington of Banner Health about hospitals and doctors and, on November 3, 2010, a draft contract between Banner .Health corporate and Emerge was prepared. (PSUF ¶¶ 1012, 1015; DRPS ¶¶ 1012, 1015.) That contract was not limited to specific Banner Health facilities or geographies. ■ (PSUF ¶ 1016; DRPS ¶ 1016.) On January 20, 2011, Powell emailed Marotta and Dee Whittington, stating in part, “John Marotta and Doug Bowen agreed to ease into the implementation of Emerge so as not to raise red flags” and that with Emerge’s “entire product portfolio, we estimate potential savings to be between 100k and 150k at each Banner Hospital.” (Pis.’ Appx. 631 (emphasis in original).). Subsequently, on February 18, 2011, Mar-otta emailed Stassen and Powell with the word that Banner Health was on board with Emerge and its business model and were planning on rolling out Emerge “Banner wide.” (PSUF ¶ 1025; DRPS ¶ 1025.) Hatton then emailed Marotta to inform him that “Emerge Medical was brought up at OR Standards meeting last week by Dee Whittington and she said for everyone to go with Emerge products. The only problem lies in the fact that if the Synthes tray is on consignment, not purchased, that Banner lawyers say you can’t put Emerge products in the trays.” (Pis.’ Appx. 636.) Later that same day, Marotta emailed Powell and Stassen indicating that he had received word that Banner Health had cleared Emerge on all products for all its hospitals. (PSUF 11030; DRPS ¶ 1030.)

Following these events and discussions, Emerge entered into a pricing agreement in May 2011 with the entire Banner Health system. (PSUF ¶ 1037; DRPS ¶1037.) Since then, Emerge has invoiced product to at least ten Banner Health facilities. (PSUF ¶ 1038; DRPS ¶ 1038.)

2. AOSH/USPI

In a presentation to the Emerge Board, Emerge identified Arizona Orthopedic Surgical Hospital (“AOSH”) as one of its targets. (PSUF ¶ 1043; DRPS ¶ 1043.) AOSH is a United Surgical Partners International (“USPI”) facility located in Arizona. (PSUF ¶ 1047; DRPS ¶ 1047.) USPI has facilities nationwide, including various facilities in Colorado. (PSUF ¶ 1049; DRPS ¶ 1049.) During the last two years of his tenure as Regional Manager of the Rocky Mountain Region, Mar-otta’s region included USPI facilities. (PSUF ¶ 1051; DRPS ¶ 1051.)

Following introductions by Marotta, Powell made various contacts at AOSH, including the. CEO, CFO, materials manager, and central sterilization coordinator. *662 (PSUF ¶¶ 1041-42; DRPS ¶¶ 1041-42.) In October 2010, Emerge made a presentation to AOSH and, later that month, shipped its first order to AOSH. (PSUF ¶ 1045-46; DRPS ¶¶ 1045-46.)

On December 7, 2010, Andrew Arreola of AOSH provided Marotta with contact information for Angie Draper, the Director of Materials Management, at USPI. (PSUF ¶¶ 1053-54; DRPS ¶¶ 1053-54.) Thereafter, Marotta emailed her regarding Emerge and requested the opportunity to explain Emerge’s business model to her. (PSUF ¶¶ 1056-57; DRPS ¶¶ 1056-57.) Powell followed up with Draper in early January and subsequently scheduled a meeting with USPI on January 11, 2011. (PSUF ¶¶ 1059-60; DRPS ¶¶ 1059-60.) After the meeting, Powell provided USPI with additional information regarding the money Emerge could save USPI annually. (PSUF ¶¶ 1061-66; DRPS ¶¶ 1061-66.) Since that time, Emerge has invoiced product to at least twenty-nine different USPI facilities. (PSUF ¶ 1068; DRPS ¶ 1068.)

3. Catholic Healthcare West

Chandler and Mercy Gilbert are both part of the Catholic Healthcare West (“CHW”) health system, now known as Dignity Health. (PSUF ¶ 1068; DRPS ¶ 1069.) CHW and Dignity Health have operations in Arizona, California, and Nevada and, at some point, Marotta’s territory included CHW facilities. (PSUF ¶ 1071; DRPS ¶ 1071.) Dr. Motzkin is affiliated with Chandler Regional and has used Emerge’s products. (PSUF ¶ 1072; DRPS ¶ 1072.)

In a presentation to its Board in 2010, Emerge identified Chandler Regional, Mercy Gilbert, and CHW as some of the target facilities and systems. (PSUF ¶ 1074; DRPS ¶ 1074.) On October 21, 2010, Marotta informed the Emerge Board that it would be implementing at Chandler Regional in two weeks. (PSUF ¶ 1075; DRPS ¶ 1075.) As with Banner Health, Chandler Regional and Mercy Gilbert were described as “Marotta Hospitals.” (PSUF ¶ 1077; DRPS ¶1077.) Emerge shipped its first order to Chandler Regional Medical Center in Chandler, Arizona on November 22, 2010, and to Mercy Gilbert Medical Center in Gilbert, Arizona on January 13, 2011. (PSUF ¶ 1079-80; DRPS ¶ 1079-80.)

On April 6, 2011, Marotta informed Emerge’s Board and Emerge’s human resources consultant that Emerge received “the greenlight in Catholic Healthcare West to roll out in the entire system.” (Pis.’ Appx. 557; PSUF ¶ 1082; DRPS ¶ 1082.) Since November 22, 2010, Emerge has invoiced product to two CHW and Dignity Health facilities. (PSUF ¶ 1083; DRPS ¶ 1083.)

4. Other System-Wide Sales and Early Targets

According to Emerge’s sales data, Emerge also invoiced the following hospitals in late 2010 and the first half of 2011: Simi Valley Hospital in California, Minnesota Valley Surgery Center in Minnesota, and Fairview Lakes Medical Center in Minnesota. (PSUF ¶ 1084; DRPS ¶ 1084.) Simi Valley Hospital is part of the Adventist Health System. (PSUF ¶ 1085; DRPS ¶ 1085.) A November 18, 2010 Emerge Board presentation identified Simi Valley Hospital and Aspen Surgery Center as recommendations from one of Emerge’s investors. (PSUF ¶ 1087; DRPS ¶ 1087.) Likewise, that same presentation identified both Minnesota Valley Surgery Center and Fairview Lakes Medical Center as investor recommendations. (PSUF ¶¶ 1089, 1093; DRPS ¶ 1089,1093.)

. H. Emerge’s Sales Process, Strategy, Implementation, and Commingling of Product

Emerge was formed to produce and sell Generic Device Fixation Hardware similar, *663 but not identical, to that which Synthes also produces and sells. (PSUF ¶ 1094; DRPS ¶ 1094.) According to Emerge, it “has devised a new approach to the sales of Generic Device Fixation Hardware [such as drill bits, guide wires, and screws] providing the American public with a like-numbered product that is similar to the Generic Device Fixation Hardware sold by Synthes, at a fraction of the price demanded by Synthes ... and can be stored alongside Synthes sophisticated orthopedic implants and used with Synthes inventory management systems and surgical sets.” (Pis.’ Appx. 2, Emerge Answer to Am. Compl. ¶ 156.) As of July 2012, Emerge sold only drill bits, guide wires, and screws. (PSUF ¶ 1096; DRPS ¶ 1096.) According to.Emerge, its “Generic Device Fixation Hardware” may be used to hold Synthes’s sophisticated implants in place. (PSUF ¶ 1097; DRPS ¶ 1097.) To that end, Emerge attempted to make its products look and feel like Synthes’s products so that it could market them as substitutes for Synthes products. (PSUF ¶ 1098; DRPS ¶ 1098.) -This strategy also included using a similar part numbering scheme for Emerge’s products, where Emerge would use Synthes part numbers and add only “.EM” to the end. (PSUF ¶¶ 1099-1100; DRPS ¶¶ 1099-1100.)

As CEO of Emerge, Marotta was responsible for Emerge’s marketing strategies and for oversight of the development of sales growth in the business. (PSUF ¶ 1101; DRPS ¶ 1101.) Both Marotta and Powell were responsible for sales beginning in September 2010. (PSUF ¶ 1102; DRPS ¶ 1102.) Prior to entering into its exclusive distributorship agreement with Cardinal Health on June 20, 2012 — wherein Emerge and Cardinal Health worked in combination on the sale and marketing of Emerge products — Emerge also had distributors who assisted in sales. (PSUF ¶¶ 1104,1106; DRPS ¶¶ 1104,1106.) Powell primarily managed these distributors, under Marotta’s supervision. (PSUF ¶ 1105; DRPS ¶ 1105.)

Prior to the Cardinal Health agreement, Emerge would typically begin the sales process by approaching the hospital system directly, either by phone, email, or in person, through corporate supply chain management. (PSUF ¶ 1107; DRPS ¶ 1107.) Emerge would inform the potential customers of the need for competition in the industry and that there was no need to pay sales reps $250,000 a year and carve costs out of the system. (PSUF ¶ 1108; DRPS ¶ 1108.) During the sales pitches, Marotta would discuss and compare Emerge product to other competitors in the marketplace, including Synthes, and would make representations about the quality of Emerge products, including that Emerge’s products had gone through 510(k) clearance and were tested against Synthes as predicate devices. (PSUF ¶¶ 1109-10; DRPS ¶¶ 1109-10.) Emerge’s sales and marketing efforts and materials would regularly make representations about the characteristics and performance of its products, and would regularly compare its products to Synthes’s. (PSUF ¶¶ 1111-14; DRPS ¶¶ 1111-14.) On many occasions, Emerge represented to customers that its products are identical to, equivalent to, or exact replicas of Synthes products. (PSUF ¶ 1119; DRPS ¶ 1119.) As a result, some Emerge customers have the impression that Emerge’s products have the same specifications as Synthes products and that the products are, in fact, milled side-by-side in the same factory. (PSUF ¶ 1120-22; DRPS ¶¶ 1120-22.)

In the website promoting Emerge products and other marketing materials, Cardinal Health and Emerge represent to prospective customers that Emerge’s products are “equivalent to market leading products when comparing composition, geometry, *664 and strength.” (Pis.’ Appx 652, 671-74; PSUF ¶ 1123; DRPS ¶ 1123.) In its sales and marketing efforts, Emerge made representations that its products were equivalent, substantially equivalent, cleared by the FDA, or had gone through the FDA regulatory process in which drill bits and guide wires gain clearance. (PSUF ¶ 1124; DRPS ¶ 1124.)

Emerge’s approach to the sales of Generic Device Fixation Hardware involved a process whereby Emerge product would be placed into Synthes SIMS cabinets and stored with like-numbered Synthes product, and stickers would be placed on some Synthes product directing customers to reorder from Emerge. (PSUF ¶ 1127; DRPS ¶ 1127.) As a result, Emerge products would be removed from the SIMS cabinet, sterilized, and delivered to the operating room, making it possible that Emerge products would be placed on a tray along with other Synthes product. (PSUF ¶ 1128; DRPS ¶ 11128.)

Emerge placed some of its product in Synthes SIMS cabinets and commingled it' with Synthes product. (Pis.’ Appx. 153, 177.) Emerge implemented its initial products at Chandler Regional on November 3, 2010. (PSUF ¶ 297; DRPS ¶297.) As of July 2011, Powell changed the dividers in Synthes SIMS cabinets at the following hospitals: Banner Gateway, Arizona Orthopedic, Chandler Regional, Fair-view Ridges, Fairview Southdale, and Simi Valley Hospital. (PSUF ¶ 297; DRPS ¶ 297.)

To respond to representations Emerge made publicly in the field and in marketing materials, Synthes sent letters to individuals at certain customers’ accounts. (PSUF ¶ 1130; DRPS ¶ 1130.) Emerge, its representatives, and its experts have all agreed that Emerge products are not identical to Synthes products, and from an engineering perspective, no product in the world is' identical. (PSUF ¶¶ 1132-33; DRPS ¶¶ 1132-33.) Emerge and its representatives have testified that all of its products do not require 510(k) clearance before marketing. (PSUF ¶ 1134; DRPS ¶ 1134.) Emerge has received some negative feedback from its customers concerning the performance of Emerge’s products. (PSUF ¶ 1136; DRPS ¶ 1136.)

I. Cardinal Health

Cardinal Health and Emerge first began to discuss a potential partnership in April of 2011 through the summer of 2011. (PSUF ¶ 1137; DRPS ¶ 1137.) Ultimately, around June 20, 2012, Emerge and Cardinal Health entered into a Senior Subordinated Note and Warrant Purchase Agreement, which made Cardinal Health the exclusive distributor of Emerge products. (PSUF ¶¶ 1138-39; DRPS ¶¶ 1138-39.) In mid-2013, Emerge and Cardinal Health entered into an Asset Purchase Agreement, whereby Cardinal Health agreed to purchase 5,372 units of Emerge product inventory for $305,473. (PSUF ¶ 1140; DRPS ¶ 1140.) In addition, Emerge and Cardinal Health entered into a Senior Secured Line of Credit Promissory Note in which Cardinal agreed to extend a line of credit to Emerge in the amount of $14,900,000 at an interest rate of six percent compounded monthly. (PSUF ¶ 1141; DRPS ¶ 1141.) The proceeds from this line of credit could be used for, among other things, the recapitalization of Emerge, product development, general working capital, or the “defense or any settlement or judgment of the Synthes litigation.” (Pis.’ Appx. 12; PSUF ¶ 1142; DRPS ¶ 1142.) Finally, in mid-2013, Emerge and Cardinal Health entered into a Put and Call Rights Agreement whereby each party has respective rights concerning the sale of all shares of Emerge to Cardinal Health for purchase prices rang *665 ing from $18,200,000 to $25,000,000. (PSUF ¶ 1143; DRPS ¶ 1143.)

J. Procedural History

On March 4, 2011, Synthes initiated the current federal action against both John Marotta and Emerge Medical, Inc. Thereafter, on March 6, 2012, Plaintiff filed an Amended Complaint adding three new defendants-Stassen, Brown, and Powell-and setting forth thirteen causes of action as follows: (1) breach of fiduciary duty and/or duty of loyalty against Marotta and Brown (id. ¶¶ 169-88); (2) breach of contract under the Non-Competition and Non-Disclosure Agreements against Marotta, Brown, and Powell (id. ¶¶ 189-214); (3) tortious interference with contract against all Defendants (id. ¶¶ 215-26); (4) aiding and abetting breach of fiduciary duty against Marotta, Brown, Stassen, and Emerge (id. ¶¶ 227-36); (5) misappropriation of trade secrets under Pennsylvania common law and the Pennsylvania Uniform Trade Secrets Act, 12 Pa.C.S. § 5302 et seq., against all Defendants (id. ¶¶ 237-49); (6) violation of the Computer Fraud and Abuse Act, 18 U.S.C. § 1030 , against all Defendants (id. ¶¶ 250-60); (7) conversion and replevin against all Defendants (id. ¶¶ 261-68); (8) false or deceptive advertising under the Lanham Act, 15 U.S.C. § 1125 (a), against Defendants Marotta, Stassen, Powell, and Emerge (id. ¶¶ 269-81); (9) trespass to chattels against Defendants Marotta, Stas-sen, Powell, and Emerge (id. ¶¶ 282-86); (10) unfair, competition against Defendants Marotta, Stassen, Powell, and Emerge (id. ¶¶ 287-97); (11) fraud against all Defendants (id. ¶¶ 298-302); (12) civil conspiracy against all Defendants (id. ¶¶ 303-09); and (13) breach of contract or, in the alterna-five, unjust enrichment against Powell, (id. ¶¶ 310-16.)

On April 3, 2012, Emerge filed its Answer with Affirmative Defenses and Counterclaims to Synthes’s Amended Complaint. (Emerge Answer & Aff. Defenses.) Following dismissal of its antitrust counterclaims, Emerge filed an Amended Answer with. Affirmative Defenses and asserted the following counterclaims against Synthes: (1) trade libel; (2) tortious interference with prospective contractual relationships; and (3) unfair competition under Pennsylvania law. (Emerge Am. Answer & Aff. Defenses.) Emerge also made a request for declaratory relief on Synthes’s claims of tortious interference with contract and aiding and abetting breach of fiduciary duty. (Id.)

Fact discovery in this matter closed on July 1, 2013. (PSUF ¶ 1181; DRPS ¶ 1181.) Expert discovery closed on September 30, 2013. (PSUF ¶ 1182; DRPS ¶ 1182.) On November 18, 2013, the parties filed a multitude of dispositive motions, including the two motions currently at issue. 5 Responses were filed on December 10, 2013 and Reply Briefs were filed on December 20, 2013. The Motions are now ripe for judicial consideration.

II. STANDARD OF REVIEW

Summary judgment is proper “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(c)(2). A factual dispute is “material” only if it might affect the out *666 come of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 , 106 S.Ct. 2505 , 91 L.Ed.2d 202 (1986). For an issue to be “genuine,” a reasonable fact-finder must be able to return a verdict in favor of the non-moving party. Id.

On summary judgment, the moving party has the initial burden of identifying evidence that it believes shows an absence of a genuine issue of material fact. Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 145-46 (3d Cir.2004). It is not the court’s role to weigh the disputed evidence and decide which is more probative, or to make credibility determinations. Boyle v. Cnty. of Allegheny, 139 F.3d 386, 393 (3d Cir.1998) (citing Petruzzi’s IGA Supermkts., Inc. v. Darling-Del. Co. Inc., 998 F.2d 1224 , 1230 (3d Cir.1993)). Rather, the court must consider the evidence, and all reasonable inferences which may be drawn from it, in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 , 106 S.Ct. 1348 , 89 L.Ed.2d 538 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 , 82 S.Ct. 993 , 8 L.Ed.2d 176 (1962)); Tigg Corp. v. Dow Corning Corp., 822 F.2d 358, 361 (3d Cir.1987).

Although the moving party must establish an absence of a genuine issue of material fact, it need not “support its motion with affidavits or other similar materials negating the opponent’s claim.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 , 106 S.Ct. 2548 , 91 L.Ed.2d 265 (1986). It can meet its burden by “pointing out ... that there is an absence of evidence to support the nonmoving party’s claims.” Id. at 325 , 106 S.Ct. 2548 . If the non-moving party “fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden at trial,” summary judgment is appropriate. Celotex, 477 U.S. at 322 , 106 S.Ct. 2548 . Moreover, the mere existence of some evidence in support of the non-movant will not be adequate to support a denial of a motion for summary judgment; there must be enough evidence to enable a jury to reasonably find for the non-movant on that issue. Anderson, 477 U.S. at 249-50 , 106 S.Ct. 2505 .

Notably, these summary judgment rules do not apply any differently where there are cross-motions pending. Lawrence v. City of Phila., 527 F.3d 299, 310 (3d Cir.2008). As stated by the Third Circuit, “ ‘[cjross-motions are no more than a claim by each side that it alone is entitled to summary judgment, and the making of such inherently contradictory claims does not constitute an agreement that if one is rejected the other is necessarily justified or that the losing party waives judicial consideration and determination whether genuine issues of material fact exist.’ ” Id. (quoting Rains v. Cascade Indus., Inc., 402 F.2d 241, 245 (3d Cir.1968)).

III. DISCUSSION

A. Claim Against Marotta for Breach of Fiduciary Duty (Count I)

The first claim at issue in the present case is Synthes’s cause of action for breach of fiduciary duty against Defendant Marotta. The Third Circuit Court of Appeals has held that obligations arising under a fiduciary duty are imposed “as a matter of social policy, rather than by mutual consensus” and that such “larger social policies [are] embodied in the law of torts rather than the terms of the contract.” Bohler-Uddeholm Am., Inc. v. Ellwood Grp. Inc., 247 F.3d 79, 105 (3d Cir.2001) (internal quotation marks omitted). Generally, “[a fiduciary) relationship exists where one person has reposed a special confidence in another to the extent that the parties do not deal with each other on *667 equal terms, either because of an overmastering dominance on one side or weakness, dependence or justifiable trust, on the other.” Commonwealth Dept. of Transp. v. E-Z Parks, Inc., 153 Pa.Cmwlth. 258 , 620 A.2d 712, 717 (1993) (quotation omitted). “A business association may be the basis of a confidential relationship ‘only if one party surrenders substantial control over some portion of his. [or her] affairs to the other.’ ” Id. (quoting In re Scott’s Estate, 455 Pa. 429 , 316 A.2d 883, 886 (1974)). Further, when a person authorizes another to act as his or her agent, the relationship between the two may be characterized as a fiduciary relationship. Sutliff v. Sutliff, 515 Pa. 393 , 528 A.2d 1318, 1323 (1987) (citing Restatement (Second) of Agency § 387 (1958)). “Under Pennsylvania law, the duty of an agent to his principal is one of loyalty in all matters affecting the subject of his agency and ‘the agent must act with the utmost good faith in the furtherance and advancement of the interests of his principal.’ ” Garbish v. Malvern Fed. Sav. & Loan Ass’n, 358 Pa.Super. 282 , 517 A.2d 547, 553-54 (1986) (quoting Sylvester v. Beck, 406 Pa. 607 , 178 A.2d 755 (1962)).

Pennsylvania law dictates that an employee, as the agent of his employer, owes his employer a duty of loyalty. Crown Coal & Coke Co. v. Compass Point Res., LLC, No. Civ.A.07-1208, 2009 WL 891869 , at *5 (W.D.Pa. Mar. 31, 2009). An agent’s specific duties of loyalty include a duty to refrain from competing with the principal and from taking action on behalf of, or otherwise assisting, the principal’s competitors throughout the duration of the agency relationship, as well as a duty not to use property or confidential information of the principal for the agent’s own purpose or those of a third party. Restatement (Third) of Agency §§ 8.04 and 8.05 (2006). Pursuant to this duty, an employee may not “act[] for a person or entity whose interests conflict[] with [the employer].” Reading Radio, Inc. v. Fink, 833 A.2d 199, 211 (Pa.Super.Ct.2003). To establish a breach of fiduciary duty under Pennsylvania law, a plaintiff must prove “(1) that the defendant negligently or intentionally failed to act in good faith and solely for the • benefit of plaintiff in all matters for which he or she was employed; (2) that the plaintiff suffered injury; and (3) that the agent’s failure to act solely for the plaintiffs benefit ... was a real factor in bringing] about plaintiffs injuries.” McDermott v. Party City Corp., 11 F.Supp.2d 612 , 626 n. 18 (E.D.Pa.1998) (internal quotation marks omitted).

“[E]mployees at will do not breach a fiduciary duty to the employer by making preparations to compete upon termination of employment provided the employee does not use the confidential information of his employer, solicit the customers of his employer, or otherwise engage in conduct directly damaging his employer during the period of employment.” Oestreich v. Environ. Inks & Coatings Corp., No. Civ.A.89-8907, 1990 WL 210599 , at *6 (E.D.Pa. Dec. 17, 1990). Thus, before the close of his employment, an employee may purchase a rival business and, upon the termination of the agency, immediately compete with his former employer. He may not, however, “solicit customers for such rival business before the end of his employment nor can he properly do other similar acts in direct competition with the employer’s.” Restatement (Second) Agency § 393, cmt. e (1958); see also Spring Steels, Inc. v. Molloy, 400 Pa. 354 , 162 A.2d 370, 375 (1960) (“Even before the termination of agency, [the employee] is entitled to make arrangements to compete, except that he cannot properly use confidential information peculiar to his employer’s business and acquired therein.”). On the other *668 hand, where an employee, bound by a restrictive covenant, makes preparations to compete with his current employer, the employee could be said to have breached his duty of loyalty by seeking employment with admitted competitors of the employer while still employed because the results of the employees’ activities could be construed as contrary to the express. interests of employer. Mattern & As socs., L.L.C. v. Seidel, 678 F.Supp.2d 256 , 269 n. 10 (D.Del.2010). Stated more succinctly:

Pennsylvania law permits an agent or employee to “make arrangements to compete,” but prohibits him from using “confidential information peculiar to his employer’s business and acquired therein.” Within this framework, an employee may properly inform customers of his current employer that he is leaving the employer to work elsewhere in the field, or to start his own competing business. In contrast, an employee who, while still working for her employer, makes improper use of her employer’s trade secrets or confidential information, usurps a business opportunity from the employer, or, in preparing to work for a rival business, solicits customers for such rival business, may be liable for a breach of the duty of loyalty.

Bro-Tech Corp. v. Thermax, Inc., 651 F.Supp.2d 378, 414 (E.D.Pa.2009) (footnotes omitted).

In the present case, Defendants seek a ruling that certain of Marotta’s activities claimed by Synthes to be breaches of fiduciary duty are, in actuality, preparatory activities that cannot form the basis for such a claim. Synthes, on the other hand, contends that it is entitled to summary judgment on the entirety of this claim based on the undisputed evidence of record demonstrating that, over a period of nine months, Marotta was directly competing with Emerge. The Court addresses each argument individually.

,1. Defendants’Motion for Partial Summary Judgment on Breach of Fiduciary Duty

As noted, Defendants seek partial summary judgment on this cause of action by asking the Court to rule that the following activities constitute nothing more than mere preparation to compete, including: (1) conceiving the idea for Emerge; (2) discussing the business concept with former defendants Brown and Stassen; (3) analyzing the market opportunities for his business concept; (4) developing and drafting a business plan; (5) developing and drafting a private placement memorandum; (6) meeting with an attorney regarding his employment agreements with Synthes; (7) working with an accounting firm; (8) incorporating Emerge; (9) soliciting and meeting with potential investors and raising money for Emerge; (10) engaging an outside vendor for design and development of Emerge’s initial product offerings; (11) developing a logo for Emerge; (12) retaining a lawyer to work on behalf of Emerge; (13) hiring a firm to file for trademark application; (14) meeting with potential members of a board of directors for Emerge; (15) recruiting a non-Synthes employee as a potential Emerge employee; (16) renting office space and buying supplies; (17) using an Emerge email address; (18) being a fifty-percent owner of Emerge; and (19) carrying out all of these activities “secretly” or in “stealth.” (Defs.’ Resp. Opp’n Mot. Summ. J. 5-6.) Defendants concede that-all of these activities occurred, but contend that they amount to nothing more than preparation to compete.

At first glance, nothing in these activities appears "to go beyond mere preparation or rises to the level of improperly using Synthes’s trade secrets or confiden *669 tial information, usurping business opportunities from Synthes, or soliciting customers for a rival business. 6 To make a partial ruling on the nature of a limited set of activities, however, disregards the interplay between these activities and the other, less innocuous activities by Marotta. Although Defendants argue that their Motion does not seek' a summary judgment determination on this “other” evidence of “other” conduct, such a piecemeal ruling as to the nature of the particular conduct they cite would thwart the well-established notion that “the 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 thoroughgoing examination of the facts and circumstances of the particular case.” Mercer Mgmt. Consulting, Inc. v. Wilde, 920 F.Supp. 219, 234 . (D.D.C.1996) (citing cases); see also HTS, Inc. v. Boley, 954 F.Supp.2d 927, 947 (D.Ariz.2013) (“[Wjhether an employee’s actions constitute a breach of the fiduciary duty of loyalty is a question of fact to be decided by the trier of fact ‘based on a consideration of all the circumstances of the case.’ ”) (quotations omitted); Restatement (Third) of Agency § 8.04 cmt. c (2006) (“In retrospect it may prove difficult to assess the propriety of a former agent’s conduct because many actions may be proper or improper, depending on ... the surrounding circumstances. For that reason it may be difficult to draw a clean distinction between actions prior to termination of an agency relationship that constitute mere preparation for competition, which do not contravene an employee’s or other agent’s duty to the principal, and actions that constitute competition.”).

Thus, while the mere act of soliciting and meeting with potential investors for Emerge may not, on its own, constitute competitive conduct, meeting with potential investors — who are also customers of Synthes — with the intent of luring them away from Synthes may be competitive. Moreover, while meeting with accounting firms and lawyers alone 'may be deemed preparatory, meeting with such individuals during Synthes business time and billing such time to Synthes may be deemed competitive. Although Marotta may have been entitled to engage an outside vendor for design and development of Emerge’s initial product offerings, misappropriating confidential Synthes information in order to facilitate the design and development of competing products is not permissible. Finally, the simple use of an Emerge email address may not be problematic, but the use of an Emerge email address tc communicate with potential customers that are existing customers of Synthes could rise to the level of competition.

In short, Defendants’ efforts >to isolate various activities by Marotta and have the Court deem them preparatory is both premature and improper. Given the sheer volume of information in this case, it is *670 impossible to view these activities in a vacuum and hold, as a matter of law, that they constitute preparatory and not competitive activity for purposes of the breach of fiduciary claim. As such, this portion of Defendants’ Motion for Summary Judgment is denied.

2. Plaintiffs’ Motion for Summary Judgment on Breach of Fiduciary Duty

Beyond simply opposing Defendants’ request for partial summary judgment on the breach of fiduciary duty claim, Synthes contends that it has affirmatively proved that Marotta actively breached his fiduciary duty resulting in cognizable damages to Synthes. 7 Putting aside the record of seemingly “preparatory” activity — i.e., incorporation of Emerge, maintenance of 50% ownership in Emerge, development of designs — the evidence is replete with evidence of additional activity taken by Marotta, during his employment with Synthes, to further the interests of Emerge. The question now becomes whether such activity was sufficiently contrary to Synthes’s interests such that the Court can rule, as a matter of law, that Marotta was competing with Synthes during the term of his employment and, as such, breached his fiduciary duty. 8

*671 Given the undisputed evidence of record, the Court finds that Synthes is entitled to summary judgment on this claim. Marot-ta’s competitive actions manifest themselves in four general ways. First, Defendants do not deny that Marotta solicited several existing and potential customers of Synthes for investment in Emerge. Indeed, Defendants admit that, prior to Mar-otta leaving Synthes’s employment, he targeted and solicited thirty-two orthopedic surgeons for investment in Emerge. (PSUF ¶ 713 (citing exhibits); DRPS ¶ 713.) Ultimately, twenty-one of these surgeons, many of whom worked at sales facilities within Marotta’s Sales Consultant Territory, invested in Emerge during Emerge’s initial round of financing in early 2010. (PSUF ¶¶ 100, 716; DRPS ¶¶ 100, 716.) Defendants also admit that, prior to April 15, 2010, Marotta was involved in discussions with Synthes employees Colin Brown, Mike Saunders, Andy White, Craig Lynn, and Brian Hahn regarding potential investments in Emerge. (PSUF ¶ 717; DRPS ¶ 717.) With the exception of Brian Hahn, all of these employees or their spouses invested in Emerge. (PSUF ¶ 718; DRPS ¶ 718.)

Defendants respond that “meetings with investors, whether customers or employees of the plaintiff or not, and discussing a potential business venture or raising money” do not constitute actual competition that can form the basis of a breach of fiduciary duty claim. (Defs.’ Resp. Opp’n Summ. J. 11.) This argument, however, overly constricts the reach of the duty of loyalty, which provides that although an employee before the end of his employment can properly purchase a rival business and upon termination of employment immediately compete, “[h]e is not ... entitled to solicit customers for such rival business before the end of his employment nor can he properly do other similar acts in direct competition with the employer’s business.’’ Restatement (Third) Agency § 8.01 cmt. e (emphasis added). Thus, while Marotta was not necessarily soliciting these surgeons to buy Emerge product on behalf of their affiliated medical facilities, the natural and logical inference from the evidence-one that is almost unavoidable-is that by obtaining physician investment, those physicians would seek to increase their investment’s profitability by encouraging their affiliated medical facilities to purchase from Emerge rather than Synthes. 9 Certainly, such acts are “similar acts in direct competition” with Synthes’s business.

Second, the record remains undisputed that while Marotta was still employed at Synthes, he emailed to his personal email account various documents, including: Synthes’s Fall 2009 new product pipeline and plan; Synthes’s 2009 usage and pricing data for Centura Health; Synthes’s *672 November 2008 through October 2009 usage and pricing data for Denver Health; October 19, 2009 pricing proposal and email negotiations with Access Mediquip; October and November 2009 P & L reports; Synthes’s price increase information with explanations; and Marotta’s contacts, calendar, tasks, and notes from his Synthes Outlook account. (PSUF ¶ 937, DRPS ¶ 937.) Such actions constitute “improper use of [an] employer’s trade secrets or confidential information.” Bro-Tech, 651 F.Supp.2d at 414 .

Defendants attempt to manufacture a dispute of material fact on this point by arguing that it is unclear how Marotta used the information, whether he used it all in connection with Emerge, whether it was confidential, and whether his use was intended. This litany of questions does not suffice to defeat summary judgment. In his 2011 deposition, Marotta could offer no explanation for why he forwarded most of these documents to his personal email. (Pis.’ Appx. 36, Marotta Dep., 685:15-87:17, July 6, 2011.) The evidence is undisputed that much of this data ended up in Emerge’s possession and was available for use by Emerge employees. (PSUF ¶¶ 946-50; DRPS ¶¶ 946-50.) Further, although Defendants attempt to contest the confidentiality of some of the information, they offer no contradictory evidence to establish that this information is not confidential. 10 See Matsushita, 475 U.S. at 586-87 , 106 S.Ct. 1348 (holding that to defeat a motion for summary judgment, the non-moving party must “do more than simply show that there is some metaphysical doubt as to the material facts.”); Anderson, 477 U.S. at 249-50 , 106 S.Ct. 2505 (noting that the mere existence of some evidence in support of the non-mov-ant will not be adequate to support a denial of a motion for summary judgment; there must be enough evidence to enable a jury to reasonably find for the non-movant on that issue). Finally, Marotta’s conclu-sory and self-serving testimony that possession of this information was “inadvertent” and a “mistake” is insufficient to withstand a motion for summary judgment. Irving v. Chester Water Auth., 439 Fed.Appx. 125, 127 (3d Cir.2011) (holding that subsequent self-serving deposition testimony is insufficient to raise a genuine issue of material fact). Given the fact that these documents were copied by Marotta simultaneously with his active planning of Emerge, the sole reasonable inference is that the documents were part of competitive activity. 11 Unsupported claims of “inadvertent” activity are therefore insufficient to raise a genuine issue of material fact.

Third, while employed by Synthes, Mar-otta attended several Emerge-related meetings and meals and submitted his related expenses to Synthes, all of which were reimbursed. For example, on September 2, 2009, Marotta had dinner, with Charlie Knight concerning Emerge, but submitted an expense report to Synthes for the cost of dinner and identified a Dr. Fitzgerald as the Synthes customer entertained for this expense. (PSUF ¶¶ 403 — 08; DRPS ¶¶ 403-08.) Also in September *673 2009, Marotta met with Cindy Cattell from Centura Health System regarding Emerge business and billed the time and lunch to Synthes. (PSUF ¶¶ 451-60; DRPS ¶¶ 451-60.) Thereafter, in October 27, 2009, Marotta attended a meeting with Elizabeth Stoller regarding Emerge’s accounting and expensed it to Synthes under the pretense that he was meeting with other Synthes employees. (PSUF ¶¶ 470-77.) A subsequent meeting with Knight about Emerge occurred on October 27, 2009, for which Synthes was again billed. (PSUF ¶¶ 480-84; DRPS ¶¶ 480-84.) Marotta later met with Stassen and Dr. Morgan for breakfast on December 15, 2009 concerning Emerge-related business, but afterward he submitted an expense report to Synthes for breakfast with a Dr. Phil Stahel and Synthes employee Richard Haschke. (PSUF ¶¶ 532-38; DRPS ¶¶ 532-38.) Finally, Marotta sought and obtained expense reimbursements from Synthes related to a mock presentation on the Emerge business plan to a group of Marotta’s professors at the University of Denver, (PSUF ¶¶ 551-60; DRPS ¶¶ 551-60), and for cell phone expenses related to Emerge. (PSUF ¶¶ 605-13; DRPS ¶¶ 605-13.) 12 “For four of the expenses identified by Synthes, Marotta admits that the meals were not for Synthes-related business, and thus they were inadvertently submitted to Synthes for reimbursement.” (Defs.’ Resp. Opp’n Mot. Summ. J. 17 n. 7.) Certainly, using Synthes resources for the purpose of starting a competitive company rises to the level of improper “competition.”

Defendants now attempt to minimize these actions by stating that, “[t]o the extent that such minimal and inadvertent submissions were deemed to be a breach, they are not a material breach, and could not entitle Synthes to more than $512 in damages.” (Id.) The fact remains, however, that Defendants admit to a breach of fiduciary duty, which, in combination with the other activities, entitles Plaintiffs to summary judgment on this claim. See Mattern & Assocs., L.L.C. v. Seidel, 678 F.Supp.2d 256, 268 (D.Del.2010) (finding defendant’s actions of providing employer with false sales reports, collecting of over-payments of draws against commissions, and charging personal expenses to the employer’s line of credit constituted breaches of fiduciary duty).

Fourth and finally, Synthes provides substantial evidence in support of its allegation that Marotta, while still a Synthes employee, sent Synthes product to Orchid for reverse engineering in the initial design of Emerge product. Defendants offer two arguments in response. First, they contend that “Marotta disagreed in his deposition that Emerge was in the design development phase prior to his resignation from Synthes.” (Id. at 15.) Aside from the fact that Marotta’s testimony was elusive and unclear at best as to what stage Emerge’s product planning was in prior to Marotta’s resignation, his self-serving testimony cannot create a genuine issue of fact when unequivocal documentary evidence establishes that Marotta was personally sending Orchid samples of Synthes’s products for design purposes. (Pis.’ Appx. 178 (emails between Orchid, Stassen, and Marotta in early April 2010 regarding Marotta and Stassen sending samples of drill bits to Orchid for Emerge’s drill prints)); Pis.’ Appx. 478 (April 1, 2010 email from Orchid to Stas-sen and Marotta discussing Orchid’s progress on cannulated screw design on behalf of Emerge); Pis.’ Appx. 486 (April 14, 2010 email from Marotta to Trafica requesting *674 that she send small fragment set to Orchid). 13 Defendants’ second response contends that Synthes.has no evidence that Marotta stole or converted the Synthes products that were used in the initial product designs. Notably, however, Marotta conceded that Emerge had no records of where it obtained the Synthes product from, so there was no way to track the source of the product. (Id.) In addition, the above-cited emails clearly evidence that Marotta himself sent Synthes product to Orchid prior to the conclusion of his employment. Finally, Stassen stated in his Declaration that, as of May 2010, Mar-otta had a “significant volume” of Synthes product in his garage at his personal residence. (Pis.’ Appx. 20, Stassen Declaration ¶ 54.) Marcy Slone confirmed that by the time she joined Emerge in June 2010, Marotta had a significant amount of Synthes product in his possession. (Pis.’ Appx. 21, Slone Declaration ¶¶ 16-18.) Again, notwithstanding Marotta’s ambiguous and self-serving testimony as to the source of the Synthes product, the evidence of record demonstrates that it was Marotta who obtained and supplied Synthes product for the design of Emerge’s initial products.

Taken individually, these various actions may not have conclusively established a breach of fiduciary duty. Considered in conjunction, however, the Court finds that no genuine issue of material fact remains as to whether Marotta breached his fiduciary duty to Synthes. While still employed with Synthes, Marot-ta actively solicited existing and potential Synthes customers to “invest” in Emerge, falsely charged Emerge-related expenses to Synthes, obtained and transferred confidential Synthes information to Emerge, and took Synthes product to assist in the development of competitive . products. Marotta’s own testimony, which often consists of an inability to recall or an uncertainty about the details of various events, simply cannot contradict the overwhelming evidence of record that Marotta went beyond mere preparation to compete and was actually competing with his employer. Accordingly, the Court grants Synthes’s Motion for Summary Judgment as to liability on its breach of fiduciary duty claim against Defendant Marotta.

B. Claim of Aiding and Abetting Breach of Fiduciary Duty Against Emerge

Next, both parties seek summary judgment on Synthes’s claim against Emerge for aiding and abetting both Marotta’s and Brown’s breaches of fiduciary duty. Synthes contends that because Marotta was Emerge’s co-founder, CEO, President, Director, and Chairman of the Board, and Stassen was a co-founder of Emerge, actions of both Marotta and Stassen may be imputed to Emerge. Defendants, on the other hand, argue that even if the Court finds that Marotta breached his fiduciary duty, Synthes’s claim against Emerge for aiding and abetting nevertheless fails.

Under Pennsylvania law, the elements that must be proven in order to maintain a claim for aiding and abetting a breach of fiduciary duty are: (1) a breach of a fiduciary duty owed to another; (2) knowledge of the breach by the aider and abettor; and (3) substantial assistance or encouragement by the aider and abettor in effecting that breach. Reis v. Barley, *675 Snyder, Senft & Cohen, 667 F.Supp.2d 471, 492 (E.D.Pa.2009). In other words, “[i]n order to be found liable for aiding and abetting a breach of a fiduciary duty, one must demonstrate that the party knew that the other’s conduct constituted a breach of a fiduciary duty and gave substantial assistance or encouragement to the other in committing that breach.” Bd. of Trs. of Teamsters Local 863 Pension Fund v. Foodtown, Inc., 296 F.3d 164 , 174 (3d Cir.2002) (claim for aiding and abetting breach of fiduciary duties under ERISA); see also Restatement (Second) Torts § 876, cmt. to subsection (b) (1979) (“If the encouragement or assistance is a substantial factor in causing the resulting tort, the one giving it is himself a tortfeasor and is responsible for the. consequences of the other’s act.”).

As to the first element, the Court has already determined that Marotta breached his fiduciary duty to Synthes. No similar finding, however, has been made with respect to Brown. Indeed, in his statement — given upon reaching a settlement with Synthes and being dismissed as a defendant from this case — Brown admits only that “[f]or a period of time beginning in August 2009 through December 2009, I was actively involved in discussions concerning the development of a company that would manufacture and sell bits and screws — products competitive with Synthes’ products.” (Pis.’ Appx. 24, Brown’s Statement ¶ 51.) Although Brown concedes that he took various actions that constituted a breach of his contractual duties to Synthes, at no point in this statement does he admit to any actions that go beyond mere preparation to compete and which could be construed as an unequivocal breach of fiduciary duty to Synthes. Nor does Synthes attempt to clarify for the Court precisely what actions constituted a breach of fiduciary duty by Brown. Accordingly, Synthes’s claim against Emerge for aiding and abetting Brown’s breach of fiduciary duty must be dismissed.

As to the second element — -knowledge of the breach by the alleged aider and abettor — Defendants do not appear to dispute that any breach of fiduciary duty by Mar-otta would have been known to Emerge through its agents Stassen and Marotta. There is no dispute in the record that Stassen and Marotta were well aware of Marotta’s actions. Therefore, the Court deems this element satisfied.

Thus, the Court is left with the third element — substantial assistance or encouragement. On this point, Defendants contend that Synthes’s claim fails in two respects. First, Defendants assert that Emerge cannot be liable for any of the pre-incorporation acts (pre-January 13, 2010) of its founders. In support of this position, Defendants contend that under Pennsylvania law, the corporation will be deemed to not yet be in existence until articles of incorporation are filed by the Commonwealth. In re Rothman, 204 B.R. 143, 150 (Bankr.E.D.Pa.1996). Consistent with that notion, Defendants cite to the general principle that “[a] corporation is not liable for torts that its promoters committed before it came into existence. Similarly, a corporation cannot sue for a tort to the promoter if the promoter did not assign the cause of action or if the cause of action is not assignable.” 1A Fletcher Cyclopedia Corporations, Ch. 9 § 218 (footnotes omitted).

This principle has been clarified, however, to recognize that “[generally, a corporation is not liable for torts of its promoters prior to its creation unless it has rendered itself liable by its own act after acquiring corporate existence. A corporation is not liable for the fraud, negligence, or other torts of its promoters or corpo- *676 rators prior to its creation, unless it has in some way rendered itself liable by its own act after acquiring corporate existence.” 18 C.J.S. Corporations § 104 (emphasis added); see also Fishkin v. Susquehanna Partners, 563 F.Supp.2d 547, 588-89 (E.D.Pa.2008) (finding corporation liable for pre-incorporation acts of promoter constituting tortious interference with contract and holding, under Pennsylvania law, that a company may become responsible for acts that occurred before it came into existence, if it subsequently ratifies those actions. Ratification can be “established from actions or from passive acquiescence of the directors if they had full knowledge of the facts.”), aff'd in part, 340 Fed.Appx. 110 (3d Cir.2009); Blackwood Coal Co., Inc. v. Deister Concentrator Co., Inc., 626 F.Supp. 727, 729 (E.D.Pa.1985) (“A promoter’s activities, however, may form the basis for corporate liability when pre-incorporation acts have been ratified by post-incorporation acts of the corporation.”); Nanodetex Corp. v. Defiant Techs., 349 Fed.Appx. 312, 322 (10th Cir.2009) (“[Corporations are usually prevented from retaining the benefits of wrongful conduct [of promoters] while escaping liability for it.”); Seibold v. Camulos Partners LP, No. Civ.A.5176, 2012 WL 4076182 , at *22 n. 10 (Del.Ch. Sept. 17, 2012) (“The Noro-ton Entities would unquestionably be liable if they were in existence at the time that Seibold took the documents. Because they have benefitted exactly as if they had been in existence at that time, they should be liable in the same way. It is well-established that, if a later formed legal entity accepts benefits from earlier offenses, it may be liable for those offenses.”).

Undoubtedly, in this case, Emerge ratified .the acts taken by its officers and directors prior to incorporation. “Proof of ratification need not be confined to formal acts of the board of directors as shown by the minutes of the meeting. It may be established from actions or from passive acquiescence of the directors if they had full knowledge of the facts.... ” Blackwood Coal Co., Inc. v. Deister Concentrator Co., Inc., 626 F.Supp. 727, 729 (E.D.Pa.1985) (quotations omitted). In this case, Emerge . ultimately benefitted from any competitive acts taken by Marotta in violation of his breach of fiduciary duty. Moreover, via the Emerge Board Minutes of January 28, 2010, June 3, 2010, and July 29, 2010, the Emerge Board stated that it was “FURTHER RESOLVED, that any actions' taken by such officers [including Marotta and Stassen] prior to the date of the foregoing resolutions adopted hereby that are within the authority conferred thereby are hereby ratified, confirmed and approved as the acts and deeds of this Company.” (Pis.’ Appx. 34 & 754.)

Defendants’ second argument against this claim, however, has significantly more merit. They assert that Emerge took no action that qualified as “substantial assistance or encouragement.” To defeat this claim, Synthes argues that Emerge is liable for aiding and abetting Marotta’s breach of fiduciary duty given that Marot-ta and Stassen, as officers and agents of Emerge, were acting together in the development of Emerge during Marotta’s employment with Synthes. It asserts that Marotta and Stassen founded Emerge and were intimately involved in each step of Emerge’s development while remaining cognizant of the complications arising from ' Brown’s and Marotta’s development of Emerge during their employment with Synthes. Ultimat

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