                  IN THE SUPREME COURT OF THE STATE OF IDAHO
                                 Docket No. 46133


BRIAN D. TRUMBLE,                                    )
                                                     )
     Plaintiff-Counterdefendant-Appellant-           )
     Cross Respondent,                               )         Boise, May 2019 Term
                                                     )
v.                                                   )         Opinion Filed: December 17, 2019
                                                     )
FARM BUREAU MUTUAL INSURANCE                         )         Karel A. Lehrman, Clerk
COMPANY OF IDAHO, an Idaho                           )
corporation; WESTERN COMMUNITY                       )
INSURANCE CO., an Idaho corporation;                 )
FARM INSURANCE BROKERAGE CO.,                        )
INC., an Idaho corporation,                          )
                                                     )
     Defendants-Counterclaimants-                    )
     Respondents-Cross Appellants.                   )

         Appeal from the District Court of the Fourth Judicial District of the State of
         Idaho, Ada County. Nancy A. Baskin, District Judge.

         The district court’s grant of summary judgment for Farm Bureau is affirmed.
         The district court’s grant of summary judgment for Trumble on Farm
         Bureau’s counterclaims is also affirmed.

         Points Law, PLLC, Boise, and Eberle, Berlin, Kading, Turnbow & McKlveen,
         Chtd, Boise, attorneys for Appellant. Michelle R. Points argued.

         Racine, Olson, Nye & Budge, Pocatello, attorneys for Respondent. Lane V.
         Erickson argued.
                             ________________________________

BEVAN, Justice
                                I.     NATURE OF THE CASE
          This case is about whether a career agent for Farm Bureau Mutual Insurance Company
can collect service bonus commissions that were credited to him during his career, but which
became forfeitable after the agent’s termination if the agent competed with Farm Bureau within
one year of his termination. The district court held that the agent forfeited his commissions by
                                                1
competing with Farm Bureau in violation of the one-year non-competition requirement. We
agree, affirming the district court’s judgment dismissing the agent’s claims.
       In addition, this case is about Farm Bureau’s counterclaims against the agent, alleging the
agent misappropriated trade secrets and intentionally interfered with Farm Bureau’s prospective
economic advantage after his termination. The district court held that the agent was blameless for
his actions after termination and dismissed Farm Bureau’s counterclaims. We likewise agree
with this determination, and affirm the district court’s dismissal of Farm Bureau’s counterclaims.
                       II.     FACTUAL AND PROCEDURAL BACKGROUND
       In December 1995, Brian D. Trumble entered into a Career Agent’s Contract (“Agent
Contract”) with Farm Bureau. Under the Agent Contract, Trumble was an independent contractor
who procured insurance from interested buyers on Farm Bureau’s behalf. The Agent Contract
included a non-competition clause which stated:
              Upon termination of this contract, Agent shall not compete in any way
       with [Farm Bureau] for a period of ninety days from the date of termination
       within a radius of fifty miles from Agent’s residence at the time of termination.
       Competition includes but is not limited to the following:
              a. Employment as an insurance agent, independent contractor or employee
                 of any other insurance company or agency selling or brokering the
                 same or similar type of insurance as [Farm Bureau];
               b. Soliciting casualty, property, disability, life or health insurance;
               c. Owning or operating any brokerage or independent insurance agency; or
               d. Providing any information to [Farm Bureau’s] competitors about [Farm
                  Bureau’s] rates, insurance policies, insureds, or policy forms.
       At about the same time Trumble entered into the Agent Contract with Farm Bureau, Farm
Bureau provided Trumble with a separate document titled “Career Agent’s Service Bonus
Commission Memorandum of Understanding” with an effective date of January 1, 1994 (“1994
Memorandum”). The 1994 Memorandum explained:
       As of January 1, 1994, each qualifying, full-time agent under contract [with Farm
       Bureau] will be eligible to receive a service bonus commission after termination if
       the agent meets the conditions set forth each year and does not compete with
       [Farm Bureau] for a period of one year after he or she has terminated.
Neither party signed the 1994 Memorandum.
       In 2011, Farm Bureau revised the 1994 Memorandum and issued another version of the
“Career Agent’s Service Bonus Commission Memorandum of Understanding” (“2011
                                                  2
Memorandum”). 1 The language quoted above remained substantially unchanged 2 but multiple
sections were added to the 2011 Memorandum that were absent from the 1994 Memorandum.
Those sections read:
               After completion of each qualifying service year, the service bonus
        commission credit will be placed on deposit. . . . The commission credit made on
        behalf of each agent and interest will not become payable to agent, however, until
        the agent complies with all other requirements of the plan, terminates, and fulfills
        the no competition requirements. Any commission credit which does not become
        payable to agent will revert back to [Farm Bureau].
                The no competition restriction referred to above means that the agent shall
        not own, operate or be employed as an agent, independent contractor or employee
        of any other insurance company . . . for a period of one year from the date of
        termination within a radius of fifty (50) miles of the agent’s residence at the time
        of termination. A violation of the no competition restriction will result in
        forfeiture of the service bonus commission and interest credited.
                 The service bonus commission will be paid one year after the agent
        terminates their contract with [Farm Bureau], provided the no competition
        restriction is observed. . . . No service bonus will be paid to any agent committing
        fraud, dishonesty or other material agent misconduct.
        From December 1995 until Trumble’s termination in May 2016, Trumble was a
qualifying agent who met the requirements to earn the service bonus commission every year. On
January 26, 2016, Farm Bureau sent Trumble a letter showing that he had qualified for service
bonus commissions totaling $251,431.96, if he met “all requirements of the program . . . before
and after termination of [his] contract.”
        On May 4, 2016, Farm Bureau terminated Trumble’s Agent Contract for alleged
dishonesty. The next day, Trumble’s counsel sent a letter to Farm Bureau requesting that it
restore Trumble as an agent and further requesting that if Farm Bureau did not rescind its



1
  There is a discrepancy between the parties about when the language was first changed. According to Farm Bureau,
Trumble was given a similar memorandum in 1996, shortly after he started working at Farm Bureau, with the added
language. Trumble also received later memorandums dated in 1998, 2004, 2009 and 2010. While Trumble does not
disagree that the 1996, 1998, 2004, 2009, and 2010 memorandums were provided to him and that they contain
language more aligned with the 2011 memorandum, Trumble asserts the 2011 Memorandum is controlling because
it was the only other Memorandum with an effective date listed. For this appeal, the district court found that the
2011 Memorandum is controlling and neither party contests that holding on appeal. Thus, we will focus on the 2011
Memorandum.
2
   The language in the 2011 Memorandum changed “one year after he or she terminated” to “one year after they
terminated.” Additionally, the 2011 Memorandum begins “As of January 1, 2011,” instead of “As of January 1,
1994.”
                                                        3
termination, that Farm Bureau immediately pay Trumble the bonus commission in full. Farm
Bureau’s counsel responded on May 9, 2016, explaining that “[Trumble’s] [A]gent [C]ontract
was ending in part, due to his dishonesty in listing a property in which he held a partial
ownership interest, in which he did not reside, as his primary residence, when he knew full well
that it was not.” Farm Bureau expressed the view that based on the dishonesty provision in the
2011 Memorandum, Farm Bureau had no contractual obligation to pay any service bonus
commissions to Trumble. The letter also noted that “even if Mr. Trumble were entitled to his
service bonus, the [2011] Memorandum contains a non-competition clause restricting payment
until after compliance for a 12-month period.”
       Two weeks later Trumble filed his complaint, seeking declaratory relief and requesting
the district court: (1) find the 90-day covenant not to compete in the Agent Contract
unenforceable; and (2) order Farm Bureau to immediately pay Trumble the service bonus
commission. Trumble then filed a motion for summary judgment seeking a ruling that (1) the
non-competition agreement in the Agent Contract was unenforceable and (2) the non-
competition and forfeiture provisions in the 2011 Memorandum were unenforceable.
       The district court denied summary judgment, holding that the issue over the non-
competition clause in the Agent Contract was moot because more than ninety days had passed.
The district court also relied particularly on Anderson v. Farm Bureau Mut. Ins. Co., 112 Idaho
461, 470, 732 P.2d 699, 708 (Ct. App. 1987) (abrogated on other grounds by Metcalf v.
Intermountain Gas Co., 116 Idaho 622, 778 P.2d 744 (1989), in ruling that the one-year non-
competition and forfeiture clauses in the 2011 Memorandum were enforceable as a matter of
law. The district court explained:
       [Trumble] . . . asserts that the non-competition restriction in the service bonus
       commission memorandum is only applicable if the agent terminates his or her
       contract. . . . In interpreting this provision, [Trumble] focuses only on the phrase
       “after they have terminated” rather than considering the sentence as a whole. The
       plain language of the provision indicates the general terms of eligibility “to
       receive a service bonus commission after termination.” In terms of such
       eligibility, there is no indication that agents who elect to terminate their contracts
       are treated any differently from agents who have their contracts terminated by
       [Farm Bureau]. Under [Trumble’s] interpretation, an agent whose contract is
       terminated by [Farm Bureau] would not be eligible to receive any service bonus
       commission, because the memorandum contains no separate statement defining
                                                   4
      eligibility under that circumstance. For these reasons, the court cannot conclude
      that the non-competition restriction is inapplicable to [Trumble] simply because
      he did not elect to terminate his contract with [Farm Bureau].
(Emphasis in original).
        About six months later, Trumble moved for reconsideration. Significantly, for purposes
of this appeal, Trumble asserted generally that the forfeiture clause in the 2011 Memorandum
was overbroad and that the forfeiture provision should not be enforced because it was
unreasonable. Trumble sought to distinguish Anderson, arguing that it was inapplicable to his
case because he had earned the service bonus commissions, unlike the agent in Anderson.
Trumble did not argue that the non-competition clause was ambiguous, or that it should be
construed against Farm Bureau.
        On reconsideration, the district court held that the 2011 Memorandum is not ambiguous.
The court also upheld the forfeiture provision in the 2011 Memorandum, noting that “[a]lthough
the law does not favor forfeitures, courts will generally uphold contracts that expressly provide
for forfeitures.” (quoting Hull v. Giesler, 156 Idaho 765, 779 (2014)). The court also noted that
forfeitures must strictly follow the contract terms and that “[t]here is no showing . . . that [Farm
Bureau] did not follow the terms of the 2011 Memorandum in denying [Trumble’s] request for
payment of his service bonus prior to the satisfaction of all the terms of the 2011 Memorandum.”
        During the litigation, Trumble had generated a list (“Subject List”) containing the names
and addresses of 578 individuals, some of whom were customers of Farm Bureau. Trumble
compiled the list from personal contacts in his phone, old commission statements, old calendars
and his own personal knowledge and experience. After the ninety-day non-compete in the Agent
Contract had elapsed, Trumble began working for one of Farm Bureau’s competitors, Post
Insurance, and began soliciting new customers from the Subject List. Farm Bureau learned of the
solicitation after a customer notified Farm Bureau about receipt of a solicitation letter.
Additionally, some customers requested to have their policies with Farm Bureau cancelled as a
result of a solicitation letter.
        Based on this information, Farm Bureau filed its answer and asserted two counterclaims:
(1) Trumble violated the Idaho Trade Secrets Act (“ITSA”); and (2) Trumble intentionally
interfered with Farm Bureau’s prospective economic advantage. Soon after, Trumble moved for
summary judgment on both of Farm Bureau’s counterclaims, asserting that Trumble did not

                                                 5
violate the ITSA and that Trumble did not interfere with Farm Bureau’s prospective economic
advantage. The district court ultimately agreed with Trumble, granting summary judgment to
him on the counterclaims, ruling that Trumble did not misappropriate any trade secrets or
intentionally interfere with Farm Bureau’s prospective economic advantage.
       During this same period, Farm Bureau also brought a motion for summary judgment
asserting that Trumble’s admitted competition with Farm Bureau within one year of his
termination acted as a forfeiture of the service bonus commission under the 2011 Memorandum.
In response, Trumble argued that summary judgment should be granted to him “on the grounds
that Farm Bureau’s actions and representations made Trumble’s compliance with the terms of
the [2011 Memorandum] futile and/or were an anticipatory breach. . . .” Trumble did not argue
that the terms of the Memorandum were ambiguous or that it should be construed against Farm
Bureau. Indeed, Trumble agreed with what a plain reading of the 2011 Memorandum required of
him in his memorandum opposing summary judgment:
       Farm Bureau is correct that the Career Agent’s Service Bonus Commission
       Memorandum of Understanding at issue in this case [the 2011 Memorandum]
       conditioned payment of the service bonus commission upon Trumble not
       competing with Defendants for a period of one year. It is also true that Trumble
       competed with Farm Bureau prior to the expiration of one year. However, Farm
       Bureau ignores the key undisputed fact explaining why Trumble did not honor the
       non-compete condition contained in the [2011 Memorandum]: namely, that Farm
       Bureau made absolutely clear that it would not pay the service bonus
       commissions even if Trumble complied with the non-compete provision.
       Trumble also argued that “Farm Bureau should be estopped from asserting that Trumble
was required to comply with the one year term of the non-compete based upon Farm Bureau’s
past inconsistent statements.” He based this argument on doctrines of quasi estoppel, anticipatory
repudiation and/or futility, which he contended nullified the non-competition condition in the
2011 Memorandum when Farm Bureau declared it would not pay the service bonus commission
based on Trumble’s alleged dishonesty.
       The district court granted summary judgment for Farm Bureau, holding: (1) the 2011
Memorandum was not ambiguous about what would occur if an agent is terminated; and (2) the
non-competition language amounted to a forfeiture provision, which was enforceable and was



                                                6
not unconscionable. Thus, the court held that Farm Bureau did not breach any contract it had
with Trumble and that Trumble had no right to the service bonus commission.
       The district court did not award attorneys’ fees or costs to either party. Both parties
appealed.
                                    III.        ISSUES ON APPEAL
   1. Whether the district court erroneously granted summary judgment for Farm Bureau,
      finding Trumble had no right to the service bonus commission because he did not satisfy
      the eligibility requirements.
   2. Whether the district court erroneously granted summary judgment for Trumble, finding
      no misappropriation of any trade secret or intentional interference with a prospective
      economic advantage.
   3. Whether either party is entitled to attorneys’ fees and costs on appeal.
                                  IV.      STANDARD OF REVIEW

       This Court employs the same standard as the district court when reviewing rulings on
summary judgment motions. La Bella Vita, LLC v. Shuler, 158 Idaho 799, 804–05, 353 P.3d 420,
425–26 (2015). Summary judgment is proper “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
I.R.C.P. 56(a). A moving party must support its assertion by citing particular materials in the
record or by showing the “materials cited do not establish the absence or presence of a genuine
dispute, or that an adverse party cannot produce admissible evidence to support the fact[s].” See
I.R.C.P. 56(c)(1)(B). Summary judgment is improper “if reasonable persons could reach
differing conclusions or draw conflicting inferences from the evidence presented.” La Bella Vita,
158 Idaho at 805, 353 P.3d at 426 (quoting McPheters v. Maile, 138 Idaho 391, 394, 64 P.3d
317, 320 (2003)). Even so, a “mere scintilla of evidence or only slight doubt as to the facts is not
sufficient to create a genuine issue of material fact for the purposes of summary judgment.” Id.
(quoting Van v. Portneuf Med. Ctr., 147 Idaho 552, 556, 212 P.3d 982, 986 (2009)).

                                           V.      ANALYSIS
   A. The district court correctly granted summary judgment for Farm Bureau.
       1. The district court’s conclusion that the 2011 Memorandum was unambiguous is
          affirmed.


                                                    7
       The first issue that we must resolve is the proper scope and reviewability of Trumble’s
first issue on appeal--whether the non-competition clause in the commission contract only
applies if Trumble terminates the commission contract. Trumble now asserts that the non-
competition requirement in the 2011 Memorandum does not apply to him because Farm Bureau
terminated his agent’s contract, rather than Trumble terminating the contract himself. The
problem for Trumble in raising this argument on appeal is that he did not raise the argument in
opposing Farm Bureau’s motion for summary judgment. As a result, Trumble is bound “to the
theory upon which the case was presented to the lower court.” State v. Garcia-Rodriguez, 162
Idaho 271, 275, 396 P.3d 700, 704 (2017) (citing Heckman Ranches, Inc. v. State, By & Through
Dep’t of Pub. Lands, 99 Idaho 793, 799–800, 589 P.2d 540, 546–47 (1979)); see also State v.
Cohagan, 162 Idaho 717, 721, 404 P.3d 659, 663 (2017) (explaining this Court will not consider
an alternate theory on appeal when that theory was conceded below).
       As noted above, in response to Farm Bureau’s motion for summary judgment, Trumble
argued that summary judgment should be granted to him “on the grounds that Farm Bureau’s
actions and representations made Trumble’s compliance with the terms of the [2011
Memorandum] futile and/or were an anticipatory breach. . . .” Trumble also argued that “Farm
Bureau should be estopped from asserting that Trumble was required to comply with the one
year term of the non-compete based upon Farm Bureau’s past inconsistent statements.” He based
this argument on doctrines of quasi estoppel, anticipatory repudiation and/or futility, which he
contended nullified the non-competition condition in the 2011 Memorandum when Farm Bureau
declared it would not pay the service bonus commission based on Trumble’s alleged dishonesty.
       Trumble did not argue that the terms of the Memorandum meant something different than
Farm Bureau argued in its motion for summary judgment. He simply argued on other grounds
(which will be discussed below) why the non-competition clause should not be enforced against
him. Beyond that, he explicitly agreed that Farm Bureau was correct in its assertion of what the
language in the 2011 Memorandum required of him. He stated in his memorandum opposing
summary judgment:
              Farm Bureau is correct that the Career Agent’s Service Bonus
       Commission Memorandum of Understanding at issue in this case [the 2011
       Memorandum] conditioned payment of the service bonus commission upon
       Trumble not competing with Defendants for a period of one year. It is also true
       that Trumble competed with Farm Bureau prior to the expiration of one year.
                                           8
        However, Farm Bureau ignores the key undisputed fact explaining why Trumble
        did not honor the non-compete condition contained in the [2011 Memorandum]:
        namely, that Farm Bureau made absolutely clear that it would not pay the service
        bonus commissions even if Trumble complied with the non-compete provision.
(Emphasis added).
        Thus, Trumble has admitted that the 2011 Memorandum applied to him, no matter how
his affiliation with Farm Bureau ended. Trumble is now bound by this concession made in his
briefing. See Cohagan, 162 Idaho at 721, 404 P.3d at 663; see State v. Hoskins, 165 Idaho 217,
224-25, 443 P.3d 231, 238–39 (2019) (reiterating that this Court will not consider an alternate
theory when that theory was conceded below). Trumble abandoned his original theory when he
opposed Farm Bureau’s summary judgment motion below, and he cannot resurrect the theory
now, on appeal. Indeed, Trumble acknowledged in his opening brief on appeal that “neither
Trumble nor Farm Bureau argued that the [2011 Memorandum] was ambiguous below, and a
review of the [2011 Memorandum] establishes it is not ambiguous.” (Emphasis added).
        The only way for Trumble to argue that the 2011 Memorandum means something
different from what the district court determined is to claim that the 2011 Memorandum is
ambiguous. Kunz v. Nield, Inc., 162 Idaho 432, 439, 398 P.3d 165, 172 (2017) (“A contract term
is ambiguous when there are two different, reasonable interpretations of the language.”). If that
were his argument, we would be constrained to review the document’s language critically, and
apply rules of construction that govern when contractual language is ambiguous. See, e.g., Fed.
Nat’l Mortg. Ass’n v. Hafer, 158 Idaho 694, 702, 351 P.3d 622, 630 (2015) (“Ambiguities in a
contract of adhesion should be construed against the drafter.”); Guzman v. Piercy, 155 Idaho
928, 936, 318 P.3d 918, 926 (2014) (“The Court construes a stipulation against the drafter.”). But
since he has never made that argument, and he conceded that Farm Bureau was correct below,
his claim on appeal that the 2011 Memorandum means something other than the district court
held fails. As Farm Bureau notes, “[w]hen read as a whole, the 2011 [Memorandum] evidences
that Farm Bureau is free to terminate an agent who could still qualify to receive a Service Bonus
Commission so long as they fulfill the 1-year non-competition eligibility requirement.” We thus
affirm the district court’s initial conclusion on this basis.
        2. The district court’s holding that Trumble had no right to the service bonus
           commission was proper.


                                                   9
        Trumble raises additional issues regarding the 2011 Memorandum that are properly
before us on appeal. He submits that the non-competition and forfeiture provisions in the 2011
Memorandum are unenforceable on three grounds: (1) the non-competition clause is subject to
reasonableness standards and, as written, it is not reasonable; (2) the forfeiture clauses are
impermissible because they are penalties that bear no reasonable relationship to Farm Bureau’s
damages; and (3) the forfeiture clauses are unconscionable. Each ground will be discussed in
turn.
        a. The non-competition and forfeiture provisions are reasonable as a matter of law.
        Trumble argues that a “reasonableness standard” should prohibit the reach of the
forfeiture clause here because the amount at issue is so substantial that it would be unreasonable
to enforce the non-competition clause against him. He supports this argument by asserting that
the $251,431.96 service bonus was based on his production and was “earned and vested” over
his twenty plus years with the company. Thus, he contends, Idaho should adopt and follow the
law that forfeitures tied to restrictive covenants are invalid and/or not enforceable because they
are unreasonable.
        The facts here do not support Trumble’s claim. While the service bonus commission is
credited yearly based on the agent completing a qualifying service year, and the amount of the
commission is placed on deposit with interest, the 2011 Memorandum clearly states that “[t]he
commission credit made on behalf of each agent and interest will not become payable to agent
. . . until the agent complies with all other requirements of the plan, terminates, and fulfills the
no competition requirements.” The 2011 Memorandum further states that if these requirements
are not met, “[a]ny commission credit which does not become payable to agent will revert back
to” Farm Bureau. Thus, Trumble’s credit for service bonus commissions was never “earned” or
“vested,” and it appropriately reverted to Farm Bureau when Trumble joined another insurance
agency within the one-year period.
        Trumble’s position is juxtaposed against the Court of Appeals’ holding in Anderson
which weighed heavily in the district court’s analysis in granting summary judgment against
him. Trumble argues that Anderson does not fit the facts presented here and that its legal
conclusions are erroneous. Trumble posits that the analysis of courts in other states shows that
the Anderson court’s conclusion is now incorrect.

                                                10
       Trumble’s reasonableness argument fails for two reasons. First, Trumble was not an
employee of Farm Bureau. Most courts that have applied the reasonableness test have done so in
the context of an employer-employee relationship not present here. E.g., Morris v. Schroder Cap.
Mgmt. Int’l, 859 N.E.2d 503, 507 (N.Y. 2006) (applying the reasonableness test to employer-
employee relationship); Gaver v. Schneider’s O.K. Tire Co., 856 N.W.2d 121, 130 (Neb. 2014)
(applying reasonableness standard to employer-employee non-compete); Lavey v. Edwards, 505
P.2d 342, 345 (Ore. 1973) (explaining the validity or invalidity of forfeiture clauses in employee
pension plans should be determined by the test of reasonableness); but see Deming v. Nationwide
Mut. Ins. Co., 905 A.2d 623 (Conn. 2006) (recognizing it was adopting a minority view, the
appellate court analyzed the forfeiture of deferred compensation as it would an employment
contract non-compete clause). Indeed, this Court applies reasonableness standards to determine
whether covenants not to compete in employment contracts are valid. E.g. Freiburger v. J-U-B
Eng’rs, Inc., 141 Idaho 415, 420, 111 P.3d 100, 105 (2005) (“A covenant not to compete in an
employment contract must be reasonable as applied to the employer, the employee, and the
public.”). Trumble’s status as an independent contractor distinguishes the cases holding that
forfeiture clauses are subject to a reasonableness analysis. The district court appropriately
recognized that Trumble was not an employee of Farm Bureau and that his right to payment was
neither earned nor vested. As a result, the reasonableness analysis applicable to employees does
not apply in Trumble’s case.
       Second, the district court appropriately applied Anderson in reaching this conclusion.
Anderson involved an insurance agent who, like Trumble, was an independent contractor, as
opposed to an employee. 112 Idaho at 465, 732 P.2d at 703. The Court of Appeals analyzed two
separate contracts in making its decision, but one of those contracts was nearly identical to the
2011 Memorandum, so its reasoning and holding covers the facts of this case. See id. at 470, 732
P.2d at 708. Like the issue presented here, in Anderson the court was asked to determine whether
an agreement which “provided for ‘service bonus’ commissions upon termination if ‘the agent . .
. does not compete with the Companies for a period of one year after he has terminated’” was an
unreasonable restraint of trade. Id. In holding that this provision was enforceable, the Court of
Appeals stated:
       Anderson argues that such provisions are anti-competition covenants and, as such,
       are void as restraints of trade. This characterization is overbroad. Agency
                                              11
       contracts often do contain non-competition covenants. These covenants usually
       require the agent to refrain from working in the insurance business for certain
       time periods and within certain geographical limitations. They will be upheld if
       they are ancillary to employment and are reasonable in their application to the
       covenantor, the covenantee and the general public. However, the provisions set
       forth in the contracts before us are not restrictive covenants in this sense. They do
       not prohibit competition; they simply impose contractual forfeitures. Provisions of
       this type generally are not considered restraints of trade.
Id. (emphasis added) (citations omitted).
       This legal conclusion remains correct and forecloses Trumble’s argument over the
forfeiture clause here. Since the non-competition clause is a forfeiture provision, it is not subject
to the same reasonableness analysis that a non-competition covenant applicable to an employee
would be. As the district court recognized,

       [c]oncededly, these forfeitures impose a cost for engaging in competition. But the
       agent, through his competitive activity, mitigates the cost by soliciting customers
       to buy insurance from the new carriers he represents. The strong weight of
       judicial authority upholds such agreements even when they are unrestricted in
       time or territory.
(Quoting Anderson, 112 Idaho at 470, 732 P.2d at 708). The strong weight of judicial authority
continues to support this conclusion.

       b. The forfeiture clause does not amount to a penalty.
       Trumble’s next argument relies on his first. He maintains that the forfeiture clause acts as
a penalty because he had already earned the service bonus commissions. Trumble again contends
that words like “will be placed on deposit,” and “termination of the Commission Contract will
not reduce accrued credits” in the 2011 Memorandum showed that the commissions have already
been earned—making the forfeiture an unenforceable penalty “designed to deter a breach or to
punish the breaching party rather than compensate the injured party. . . .” As we have already
held, the clear mandate of the 2011 Memorandum is that the agent must comply with all the
requirements before becoming eligible to receive payment of the service bonus commission.
Trumble never became qualified as he violated the non-competition requirement.
       Trumble equates the forfeiture provision to a liquidated damages clause, noting that
forfeiture provisions should not be enforced when they are “designed to deter a breach or to
punish the breaching party rather than compensate the injured party for damages occasioned by
the breach.” Hull v. Giesler, 156 Idaho 765, 779, 331 P.3d 507, 521 (2014). Trumble also cites
                                              12
Magic Valley Truck Brokers, Inc. v. Meyer, 133 Idaho 110, 117, 982 P.2d 945, 952 (Ct. App.
1999) in support of his argument. Magic Valley is readily distinguishable. There, the
employment contract between the plaintiff and the defendant provided that in the event of a
breach of a non-competition clause by the plaintiff, the defendant would be entitled to liquidated
damages in the amount of $5,000 for each calendar month of competition by the plaintiff. 133
Idaho at 113, 982 P.2d at 948. The court held that the clause was unenforceable as exorbitant and
unconscionable, amounting to an unenforceable penalty. See id. at 117, 982 P.2d at 952.
       Unlike Magic Valley, but like the district court below, we hold that the non-competition
provision in the 2011 Memorandum is not a liquidated damages clause. We note that the Agent’s
Contract, like the agreement in Magic Valley, set forth the agent’s promise not to compete for
ninety days and contained a liquidated damages clause in the event of a breach of that agreement
by the agent. In contrast, in the 2011 Memorandum, the non-competition provision is a condition
of eligibility to receive the service bonus commission, rather than a contractual promise that
would be breached by the agent engaging in competition. As noted, the 2011 Memorandum
provides that the service bonus commission
       will not become payable to agent . . . until the agent complies with all other
       requirements of the plan, terminates, and fulfills the no competition requirements.
       ....
       A violation of the no competition restriction will result in forfeiture of the service
       bonus commission and interest credited.

                The service bonus commission will be paid one year after the agent
       terminates their contract with [Farm Bureau], provided the no competition
       restriction is observed.
Provisions of this type do not prohibit competition and they are not imposed as a penalty for any
breach. They simply impose a cost as a consequence for choosing to compete with Farm Bureau
within one year of termination – and that cost is a valid “cost for engaging in competition.”
Anderson, 112 Idaho at 470, 732 P.2d at 708.
       c. The forfeiture clause is not unconscionable.
       Trumble also asserts that the forfeiture provision is unconscionable. For a contract
provision to be void as unconscionable, it must be both procedurally and substantively
unconscionable. Lovey v. Regence BlueShield of Idaho, 139 Idaho 37, 42, 72 P.3d 877, 882
(2003). Procedural unconscionability concerns the bargaining process leading up to the

                                                13
formation of a contract. Wattenbarger v. A.G. Edwards & Sons, Inc., 150 Idaho 308, 321, 246
P.3d 961, 974 (2010). Substantive unconscionability focuses on the terms of the contract. Id.
               Procedural unconscionability exists when the contract was not the result of
       free bargaining between the parties. Indicators of procedural unconscionability
       generally include a lack of voluntariness and a lack of knowledge. Indicators of
       lack of voluntariness include the use of high-pressure tactics, coercion, oppression
       or threats short of duress. A lack of voluntariness can be shown by an imbalance
       in bargaining power resulting from the non-negotiability of the stronger party’s
       terms and the inability to contract with another party due to time, market
       pressures, or other factors. Indicators of a lack of knowledge include a lack of
       understanding regarding the contract terms arising from the use of inconspicuous
       print, ambiguous wording, or complex legalistic language; the lack of opportunity
       to study the contract and inquire about its terms; or disparity in sophistication,
       knowledge, or experience of the parties.
               The focus of substantive unconscionability is solely on the terms of the
       contractual provision at issue. A provision is substantively unconscionable if it is
       a bargain no reasonable person would make or that no fair and honest person
       would accept. If a contract term is one-sided or oppressive, it may be
       substantively unconscionable. In determining whether a term is unconscionable, a
       court must consider the purpose and effect of the terms at issue, the needs of both
       parties and the commercial setting in which the agreement was executed, and the
       reasonableness of the terms at the time of contracting.
Id. (internal quotations and citations omitted). When reviewing an unconscionability
determination made by a trial court, the appellate court accepts the factual findings made by the
trial court, as long as they are supported by substantial, competent evidence, and freely reviews
as a question of law whether under those facts, a contractual provision is unconscionable. Lovey,
139 Idaho at 41, 72 P.3d at 881.

       The district court here held that “the record is devoid of any facts which the [c]ourt could
consider in making an unconscionability determination. [Trumble] simply asserts in his briefing
that the bonus service commission memorandum ‘was not even a bargained for contract.’ ”
Trumble’s argument on appeal mirrors that made before the district court. He claims that the
2011 Memorandum was “not even a bargained for or signed contract[,]” and that “including a
forfeiture based upon ‘dishonest’ conduct is substantively unconscionable because it is
oppressive.” These allegations are insufficient as a matter of law to establish either procedural or
substantive unconscionability. We recognize and agree with the general legal premise refusing to
enforce forfeiture penalties that bear no rational basis to the damages incurred by an employer

                                                14
when an employee competes against it. E.g., Magic Valley, 133 Idaho at 117, 982 P.2d at 952.
With that said, these principles are of no moment here because: (1) Trumble was not an
employee of Farm Bureau; and (2) the forfeiture provision in the non-competition clause was
merely part of a unilateral offer that never materialized. Once again, the non-competition
provision in the 2011 Memorandum is a condition of eligibility to receive a service bonus
commission; it is not a contractual promise on the part of the agent that would be breached by the
agent competing with Farm Bureau. Thus, the 2011 Memorandum is not unconscionable.
       3. Trumble’s quasi-estoppel, futility and anticipatory repudiation arguments are
          unsupported by the record and applicable case law.
       Trumble also argues that statements made by Farm Bureau at and around the time of
Trumble’s termination relieved Trumble from complying with the non-competition clause based
on the doctrines of quasi-estoppel, futility, and/or anticipatory repudiation. First, Trumble alleges
the doctrine of quasi-estoppel bars Farm Bureau from relying on the non-competition clause in
the 2011 Memorandum because Farm Bureau took inconsistent positions about why Trumble
had no right to the service bonus commission. Second, Trumble argues that the doctrine of
futility released Trumble from complying with the non-competition clause. Lastly, Trumble
argues that Farm Bureau anticipatorily repudiated its “contract” when Farm Bureau informed
Trumble he would not receive the service bonus commission regardless of his compliance with
the non-competition clause.
       a. Quasi-estoppel does not apply.
       First, Trumble asserts the doctrine of quasi-estoppel bars Farm Bureau from relying on
the non-competition clause in the 2011 Memorandum. According to Trumble, Farm Bureau was
inconsistent by representing at the time of termination that Trumble would never receive a
service bonus commission even if Trumble complied with the non-competition clause.
       “The doctrine of quasi-estoppel ‘prevents a party from asserting a right, to the detriment
of another party, which is inconsistent with a position previously taken.’ ” Keybank Nat’l Ass’n
v. PAL I, LLC, 155 Idaho 287, 294, 311 P.3d 299, 306 (2013). The doctrine applies when:
       (1) [T]he offending party took a different position than his or her original position
       and (2) either (a) the offending party gained an advantage or caused a
       disadvantage to the other party; (b) the other party was induced to change
       positions; or (c) it would be unconscionable to permit the offending party to


                                                 15
       maintain an inconsistent position from one he or she has already derived a benefit
       or acquiesced in.
Id. (quoting Atwood v. Smith, 143 Idaho 110, 114, 138 P.3d 310, 314 (2006)). “Quasi-estoppel is
essentially a last-gasp theory under which a defendant who can point to no specific detrimental
reliance due to plaintiff’s conduct may still assert that plaintiffs are estopped from asserting
allegedly contrary positions where it would be unconscionable for them to do so.” Id. (quoting
Schoonover v. Bonner Cnty., 113 Idaho 916, 919, 750 P.2d 95, 98 (1988)).
       Here, Farm Bureau has consistently maintained one general position—Trumble is not
entitled to the service bonus commission because he did not satisfy all of the eligibility
requirements under the 2011 Memorandum. Farm Bureau first informed Trumble he would not
be entitled to the service bonus commission because he was terminated for dishonest conduct. At
that time, Farm Bureau also informed Trumble that “even if [Trumble] were entitled to his
service bonus, the Memorandum contains a non-competition clause restricting payment until
after compliance for a 12-month period.” During litigation, Farm Bureau discovered Trumble
was competing and violating the non-competition clause in the 2011 Memorandum. Based on
this information, Farm Bureau filed for summary judgment arguing Trumble had no right to the
service bonus commission in spite of the dishonesty allegations because it was undisputed that
Trumble was competing in direct violation of the one-year non-competition clause. Thus, while
Farm Bureau’s initial statements and reasons for terminating Trumble were based on allegations
of dishonesty, those claims were not the sole basis for its asserted defenses, as its counsel
pointed-out in the May 9, 2016, letter, within days of Trumble’s termination as set forth above.
Trumble cannot show that Farm Bureau took an inconsistent position and then changed that
position in an unfair way. Trumble thus fails to satisfy the first factor necessary to establish a
successful quasi-estoppel claim.
       b. The contract doctrine of anticipatory repudiation does not apply.
       Based on the same statements made by Farm Bureau at the May 4, 2016, meeting and in
the May 9, 2016, letter, Trumble argues that Farm Bureau anticipatorily repudiated its
obligations under the 2011 Memorandum when it told Trumble that he would not receive the
service bonus commission. “An anticipatory breach of a contract has been defined as ‘a
repudiation [by the promisor] of his contractual duty before the time fixed in the contract for his
performance has arrived.’ ” Swafford v. Huntsman Springs, Inc., 163 Idaho 209, 213, 409 P.3d
                                                16
789, 793 (2017) (emphasis in original) (quoting Foley v. Munio, 105 Idaho 309, 311, 669 P.2d
198, 200 (1983)). A repudiation is “a statement by the obligor to the obligee indicating that the
obligor will commit a breach that would of itself give the obligee a claim for damages for total
breach[.]” RESTATEMENT (SECOND) OF CONTRACTS § 250 (1981). A repudiating party’s language
“must be sufficiently positive to be reasonably interpreted to mean that the party will not or
cannot perform.” Id. cmt. b. Further, a statement of repudiation must threaten a breach of
sufficient gravity that, “if the breach actually occurred, it would of itself give the obligee a claim
for damages for total breach. . . .” Id. cmt. d.
        Again, the doctrine of anticipatory breach requires the breach of a contractual duty. Farm
Bureau’s obligation under the 2011 Memorandum to pay the service bonus commission did not
arise until Trumble satisfied all the stated eligibility conditions. Without an obligation to make
such a payment, there can be no anticipatory repudiation because Farm Bureau did not breach
any contractual duty—Farm Bureau had none.
        Beyond that, the May 9, 2016, letter contemplated the possibility that Farm Bureau
misjudged Trumble’s behavior and specifically informed Trumble that the non-competition
provision applied even if the dishonesty provision did not apply, when it stated, “even if Mr.
Trumble were entitled to his service bonus, the [2011] Memorandum contains a non-competition
clause restricting payment until after compliance for a 12-month period.” Thus, as the district
court noted, Farm Bureau did not express that Trumble would never be paid under any
circumstances, but that Trumble could maintain eligibility for the service bonus commission if he
successfully challenged Farm Bureau’s allegations about his dishonesty. Farm Bureau issued this
clarification two weeks before Trumble filed his initial complaint on May 23, 2016, and months
before Trumble began working for Post Insurance in August 2016. As the district court
summarized:
        So while [Trumble] has established that he believed [Farm Bureau] would not pay
        the service bonus because they thought he acted dishonestly, there are no facts in
        the record to support a claim that [Trumble] reasonably believed there had been
        an anticipatory repudiation of all eligibility requirements of the [2011
        Memorandum by Farm Bureau] prior to his filing of the Complaint or to
        competing in August of 2016.
Thus, Trumble’s attempt to show that Farm Bureau repudiated an obligation to pay him before
he qualified for the same is unsupported by this record.

                                                   17
       c. The doctrine of futility does not apply.
       Trumble asserts he did not need to comply with the non-competition clause because
doing so would be futile. He argues that once Farm Bureau declared that it would not pay the
service bonus commission to Trumble due to his alleged dishonesty, it would have been futile for
him to comply with the one-year covenant not to compete. This argument fails for the same
reasons stated regarding his anticipatory repudiation argument.
       The law is well settled that one will not be required to undertake a useless act. Ford v.
Lord, 99 Idaho 580 (1978). Even so, as has been established, Farm Bureau made clear to
Trumble well before he filed his complaint that “even if Mr. Trumble were entitled to his service
bonus, the [2011] Memorandum contains a non-competition clause restricting payment until after
compliance for a 12-month period.” Given the conclusion that Trumble had to comply with the
12-month non-competition clause before he was eligible for any bonus commission payments,
his argument that it would have been useless to adhere to the non-competition clause because
Farm Bureau had already made up its mind is erroneous. He ultimately filed suit and had every
right to disprove Farm Bureau’s claims that he was terminated for dishonesty. Had he
successfully done so, while waiting for the one-year period to run, he would have been eligible to
receive the service bonus commission. Thus, it would not have been futile for him to make that
choice and avoid competing with Farm Bureau for one year as required.
   B. The district court properly granted summary judgment for Trumble on the
      misappropriation and intentional interference of a prospective economic advantage
      claims.
       Farm Bureau alleges the district court erroneously granted summary judgment for
Trumble on its misappropriation and intentional interference of a prospective economic
advantage claims. Farm Bureau continues to argue on appeal that the Subject List is a trade
secret and that Trumble’s mere usage constitutes a misappropriation under the ITSA. Farm
Bureau also argues that by violating the ITSA, Trumble wrongfully interfered with Farm
Bureau’s prospective economic advantage. We affirm the district court’s grant of summary
judgment for Trumble.
   1. The district court did not err in granting summary judgment for Trumble on the
      misappropriation claim because the Subject List is not a trade secret.



                                                 18
       In its initial counterclaim, Farm Bureau alleged the Subject List constituted a trade secret
because the list contained “confidential and proprietary internal records, lists and data compiled,
owned and used by Farm Bureau in its operations, which Farm Bureau ha[d] continue[d] to
protect as confidential.” Farm Bureau further alleged that “Trumble’s retention, possession
and/or use of the above confidential information constitute[d] a misappropriation” in violation of
the ITSA. In reply, Trumble argued he created the Subject List after he was terminated, the list
was created based on his own personal knowledge and experience, the Subject List derived no
independent economic value, and Farm Bureau did not reasonably maintain its secrecy. Further,
even if the Subject List were a trade secret, Trumble argued he did not acquire it by improper
means and therefore did not misappropriate the Subject List.
       The district court found nothing in the record to refute Trumble’s assertions that he
created the Subject List after termination based on his phone contacts, commission statements,
and calendars and that none of these sources “contained the kind of proprietary information that
could only have been obtained from [Farm Bureau].” The district court also found “no evidence
that the actual information at issue in this case was subject to any reasonable efforts to maintain
its secrecy” past the ninety-day non-competition clause in the Agent Contract. The district court
ultimately ruled the Subject List was not a trade secret. The district court reiterated that even if
the Subject List were a trade secret, Trumble did not acquire it through improper means. The
district court thus ruled there was no genuine dispute based on the evidence provided and granted
summary judgment in Trumble’s favor.
       On cross-appeal, Farm Bureau argues the district court erroneously granted summary
judgment in Trumble’s favor because Trumble admitted in his affidavit that “a few names on the
Subject List (approximately 20 or so) came from [his] old commission statements and
calendars.” Farm Bureau interprets this statement as Trumble admitting use of a customer list,
which, according to Farm Bureau, by itself constitutes a trade secret. Farm Bureau also alleges
mere usage of the customer list constitutes misappropriation. Farm Bureau’s argument, with no
additional evidence, does not create a genuine dispute.
       “To prevail in a claim brought under the ITSA, ‘[a] plaintiff must show that a trade secret
actually existed.’ ” La Bella Vita, LLC v. Shuler, 159 Idaho 799, 807, 353 P.3d 420, 428



                                                19
(quoting Basic Am., Inc. v. Shatila, 133 Idaho 726, 734, 992 P.2d 175, 183 (1999)). Without this
showing, there can be no misappropriation. Id. The ITSA defines a trade secret as:
       [I]nformation, including a formula, pattern, compilation, program, computer
       program, device, method, technique, or process, that:
       (a)     Derives independent economic value, actual or potential, from not being
               generally known to, and not being readily ascertainable by proper means
               by, other persons who can obtain economic value from its disclosure or
               use; and
       (b)     Is the subject of efforts that are reasonable under the circumstances to
               maintain its secrecy. . . .
I.C. § 48-801(5). This Court has also taken direction from the Restatement of Torts section 757,
which lists six additional factors that can be used to determine whether information is, or is not a
trade secret. Shatila, 133 Idaho at 735, 992 P.2d at 184. These factors include
       (1) the extent to which the information is known outside [the plaintiff’s] business;
       (2) the extent to which it is known by employees and others involved in the
       business; (3) the extent of measures taken by [the business] to guard the secrecy
       of the information; (4) the value of the information to [the business] and [its]
       competitors; (5) the amount of effort or money expended by [the business] in
       developing the information; and (6) the ease or difficulty with which the
       information could be properly acquired or duplicated by others.
Id. (quoting RESTATEMENT OF TORTS § 757, cmt. b (1939)). These factors are not required, but
“address the issue of whether the information in question is generally known or readily
ascertainable.” Id.
       When a plaintiff successfully establishes the existence of a trade secret, the plaintiff must
also show that the defendant misappropriated the trade secret. See I.C. § 48-801.
Misappropriation is defined as:
       (a)    Acquisition of a trade secret of another by a person who knows or has
              reason to know that the trade secret was acquired by improper means; or
       (b)    Disclosure or use of a trade secret of another without express or implied
              consent by a person who:
           A. Used improper means to acquire knowledge of the trade secret; or
              B.       At the time of disclosure or use, knew or had reason to know that
                       his knowledge of the trade secret was:
                    i.        Derived from or through a person who had utilized
                              improper means to acquire it;
                   ii.        Acquired under circumstances giving rise to a duty to
                              maintain its secrecy or limit its use; or

                                                20
                    iii.      Derived from or through a person who owed a duty to the
                              person seeking relief to maintain its secrecy or limit its use;
                              or
             C.        Before a material change of his position, knew or had reason to
                       know that it was a trade secret and that knowledge of it has been
                       acquired by accident or mistake.
I.C. § 48-801(2). Improper means include “theft, bribery, misrepresentation, breach or
inducement of a breach of a duty to maintain secrecy. . . .” I.C. § 48-801(1).
       Farm Bureau notes that this Court has held customer lists are trade secrets. See Wesco
Autobody Supply, Inc. v. Ernest, 149 Idaho 881, 898, 243 P.3d 1069, 1086 (2010) (explaining
“customer lists . . . are trade secrets.”); see also Northwest Bec-Corp v. Home Living Serv., 136
Idaho 835, 839, 41 P.3d 263, 267 (2002) (explaining that it was undisputed the customer list was
a trade secret). Even so, not every customer list constitutes a trade secret. See La Bella Vita, 158
Idaho at 810, 353 P.3d at 431.
       In La Bella Vita, a salon sued its former employees who had opened their own salon,
alleging the former employees misappropriated trade secrets. Id. at 803, 353 P.3d at 424.
According to the salon, the former employees “wrongfully took and used its confidential client
lists, calendars, scheduling lists, client contact information, and other information regarding
products, services, and client preferences in the creation and promotion” for the new salon. Id. at
802, 353 P.3d at 423. In response, the former employees argued the lists were compiled from
their own personal efforts including information from “cell phone and email contacts, church
membership directories, social media connections, suggestions and referrals from family and
friends, public phone books, online directories, internet searches, word of mouth, and use of
referral cards.” Id. at 808, 353 P.3d at 429. The district court granted summary judgment against
the salon, finding no evidence produced to refute the fact the former employees generated the
client list through “alternative and independent methods and sources.” Id. at 803, 353 P.3d at
424 (emphasis added). On appeal, the salon argued summary judgment was improper because
there was a genuine dispute about the lists’ confidentiality, no matter how the lists were
compiled. Id. at 808, 353 P.3d at 429. In support of these contentions, the salon provided
evidence including, but not limited to, the confidentiality of its clients. Id. at 810, 353 P.3d at
431. The salon’s confidentiality and privacy practices were established through the testimony of
its owner:

                                                21
       [La Bella Vita’s] data system included the names, phone numbers, physical
       addresses, email addresses, special dates (birthday, anniversaries), services and
       product profiles used by the client . . . and referral information. This information
       was generated for the specific purpose of keeping the clients as customers and
       maintaining good client relations. I was careful to ensure that all of this
       information was included as part of our confidentiality contract with our
       employees. The importance of keeping this information confidential was
       discussed in the confidentiality contract as well as the employee handbook.
Id. These customer lists were stored at the salon “in a way that the information did not become
public.” Id. The former employees argued the lists were not confidential because it was the
practice of the salon to print portions of the list as a daily schedule and post these schedules
around the salon, allowing anyone receiving services to view them. Id. at 811, 353 P.3d at 432.
This Court held summary judgment was improper because “a genuine factual dispute as to the
confidential nature of [the salon’s] client list and client-related information” was presented. Id. at
812, 353 P.3d at 433. Although this Court did not identify the parameters for what constitutes
confidentiality, we noted that “[a] person’s contact information can be ascertained in a variety of
ways, including through the involuntary sharing or selling of information. It is nearly impossible
to completely control these other avenues . . . even though [the salon’s] clients considered the
same to be non-public and confidential.” Id. at 814, 353 P.3d at 435.
       Here, the Subject List does not constitute a trade secret because it was almost wholly
generated from alternative and independent sources, it contained generally known information
and Farm Bureau took few efforts to maintain its secrecy. First, the Subject List was generated
from alternative and independent sources. In La Bella Vita, the district court found the customer
list may not have been a trade secret because the list could be generated from alternative and
independent sources such as “cell phone and email contacts, church membership directories,
social media connections, suggestions and referrals from family and friends, public phone books,
online directories, internet searches, word of mouth, and use of referral cards.” 159 Idaho at 808,
353 P.3d at 429. Although this Court ultimately held the district court erred in granting summary
judgment against the salon owner, this Court’s holding was based on confidentiality concerns
regarding the customer list itself, not how it was generated. See id. at 810, 353 P.3d at 431. Thus,
customer lists generated from independent sources such as those identified do not automatically
constitute trade secrets. See id. Here, the Subject List was mostly generated from Trumble’s
personal knowledge accumulated while working as an insurance agent as well as through the
                                                 22
contacts in his phone. Although around twenty names on the Subject List were compiled from
old commission statements and calendars accessed when Trumble was working for Farm Bureau,
most of the names included on the list were from Trumble’s own alternative and independent
sources.
       Second, the Subject List generally contains only contact information of individuals—
their names and addresses. As briefly noted in La Bella Vita, contact information can be
determined in many ways, even if involuntarily, making it essentially public information. Id. at
814, 353 P.3d at 435. Such public information cannot, on its own, constitute a trade secret.
       Third, Farm Bureau did not take reasonable efforts to maintain the secrecy of the
information included on the Subject List. The Subject List includes names and addresses only.
This information was compiled mostly from Trumble’s phone contacts. Mr. Swore, a Farm
Bureau employee who maintained the operating systems and network infrastructure, provided
testimony about Farm Bureau’s protocol after an agent is terminated and explained how an
agent’s contacts are removed from Farm Bureau’s server and any saved contacts, including
addresses, are sent directly to the terminated individual. In his deposition, Mr. Swore testified
that Trumble’s contacts were sent directly to him. After learning Trumble’s contacts had not
been sent to Trumble, Mr. Swore altered his testimony accordingly. However, Mr. Swore did not
alter his testimony about Farm Bureau’s protocol. It is hard to maintain an argument that contacts
generated during employment are intended to remain a secret when Farm Bureau’s practice is to
provide terminated individuals with a copy of their contacts from the server.
       Farm Bureau particularly challenges the portion of the Subject List that Trumble admits
was generated from past commission statements sent by Farm Bureau. Although this Court did
hold summary judgment was improper when conflicting testimony was provided about the
general business practices regarding the confidentiality of the customer list and customer
information, 158 Idaho at 812, 353 P.3d at 433, here no such dispute is supported by the record.
Farm Bureau sent unredacted commission statements to Trumble throughout his tenure which
included the names of customers and customer policy numbers. It is also undisputed that the
commission statements lacked any language relaying the statements as confidential. There also
was no business policy or practice in place informing agents that the information in the
commission statements was confidential. And even if there were some aspect of confidentially

                                                23
implied by Farm Bureau about the commission statements, the statements did not have addresses
of the customers. Thus, on these facts we conclude that the Subject List could not have divulged
confidential information when the information Trumble used to mail solicitation letters was not
included in the commission statements. Based on these reasons, we agree with the district court
that the Subject List is not a trade secret.
        Even if the list were a trade secret, Farm Bureau is also required to prove Trumble
misappropriated its trade secrets in order to establish a successful ITSA claim. Merely using
information obtained during his association with Farm Bureau in a new capacity does not rise to
the level of misappropriation. Northwest Bec-Corp v. Home Living Service, 136 Idaho 835, 839,
41 P.3d 263,267 (2002) (explaining that the legislature did not intend the ITSA to be read so
broadly that merely hiring a competitor’s employee constitutes acquiring a trade secret because
employees will naturally take with them the skills, training and knowledge acquired from
previous employment). Nor is there any evidence in the record that the Subject List was acquired
through improper means. Farm Bureau made no allegation of theft, bribery or misrepresentation.
Its argument is founded on Trumble breaching a duty to maintain secrecy. As discussed directly
above, Farm Bureau did not take reasonable efforts to maintain secrecy. Even so, the district
court found that the Agent Contract provided a specific list of forbidden activities that a
terminated agent could not participate in for a period of ninety days. Thus, the district court
found that this provision signified that after the ninety days had passed, Trumble was free to
engage in any of the listed activities without breaching the Agent Contract. Trumble adhered to
the ninety-day term in the Agent Contract and thus there was no evidence of breach to maintain
secrecy. Farm Bureau had the duty “to present evidence that demonstrated there was a genuine
issue of material fact in order to survive summary judgment.” Id. at 841, 41 P.3d at 269. It failed
to do so. Summary judgment in Trumble’s favor was proper on the misappropriation claim.
    2. The district court properly granted summary judgment for Trumble on the intentional
       interference with a prospective economic advantage claim.
        To maintain a successful claim for intentional interference with a prospective economic
advantage, a plaintiff must show:
        (1) [T]he existence of a valid economic expectancy, (2) knowledge of the
        expectancy on the part of the interferer, (3) intentional interference inducing
        termination of the expectancy, (4) the interference was wrongful by some measure

                                                24
        beyond the fact of the interference itself, and (5) resulting damage to the plaintiff
        whose expectancy has been disrupted.
Wesco, 149 Idaho at 893, 243 P.3d at 1081 (quoting Cantwell v. City of Boise, 146 Idaho 127,
138, 191 P.3d 205, 216 (2008)). Interference is wrongful where “(1) the interferer had an
improper motive to harm the plaintiff; or (2) the means used by the interferer to cause injury to
the prospective advantage were wrongful by reason of statute, regulation, recognized common
law rule, or an established standard of a trade or profession.” Syringa Networks, LLC v. Idaho
Dep’t. of Admin., 155 Idaho 55, 64–5, 305 P.3d 499, 508–09 (2013). “The mere pursuit of one’s
own business purposes is not sufficient to support an inference of an improper motive to harm
the plaintiff.” Id.at 65, 305 P.3d at 509.
        Farm Bureau’s argument that Trumble interfered with its economic expectancy is based
on Trumble’s alleged violation of the ITSA. As noted above, there is no genuine dispute based
on the record that Trumble violated the ITSA. Without an ITSA violation, there can be no
intentional interference claim based on Farm Bureau’s arguments. Beyond that, Trumble’s
actions were taken to pursue his own business purposes. Pursuing one’s own business interest
cannot support an inference of an improper motive to harm Farm Bureau. See id.
        In summary, Farm Bureau provided no additional evidence to create a genuine dispute
that the Subject List was a trade secret, that Trumble misappropriated the Subject List or that
Trumble wrongfully interfered with Farm Bureau’s prospective economic advantage. Summary
judgment for Trumble on Farm Bureau’s counterclaims was proper. We affirm the district court.
        C.      Neither party is entitled to attorney fees or costs on appeal.
        Both parties request attorney fees and costs on appeal under Idaho Code section 12-
120(3). Section 12-120(3) states “[i]n any civil action to recover . . . in any commercial
transaction unless otherwise provided by law, the prevailing party shall be allowed a reasonable
attorney’s fee to be set by the court, to be taxed and collected as costs.” Commercial transaction
is “defined to mean all transactions expect transactions for personal or household purposes.” Id.
In determining which party prevailed where there are claims and counterclaims between
opposing parties, this Court determines who prevailed in the action from an overall view, not
through a claim-by-claim analysis. Oakes v. Boise Heart Clinic Physicians, PLLC, 152 Idaho
540, 545, 272 P.3d 512, 517 (2012).


                                                 25
        Here, we affirm the district court’s grant of summary judgment for Farm Bureau holding
Trumble had no right to the service bonus commission. We also affirm the district court’s grant
of summary judgment for Trumble on the misappropriation and intentional interference with a
prospective economic advantage claims. Based on our rulings, neither party prevailed. As a
result, neither party is entitled to attorney fees or costs on appeal.
                                        VI.     CONCLUSION
    The district court’s grant of summary judgment for Farm Bureau is affirmed. The district
court’s grant of summary judgment for Trumble on Farm Bureau’s counterclaims of
misappropriation of trade secrets and intentional interference with a prospective economic
advantage is also affirmed. Neither party is entitled to attorney fees or costs on appeal.
    Chief Justice BURDICK, Justices BRODY, STEGNER and MOELLER, CONCUR.




                                                   26
