The Interference Torts

The field of tor tious interference occupies the greatest a rea
of overlap between business torts and “traditional” antitrust
Because the essence of tortious interference is the
wrongful disruption of business rela tionships, such claims
frequently are asserted in disputes between competitors
as well
as between firms occupying different levels of the distribution
Not infrequently, the same commercial conduct is
challenged under both theories.
Although the tort has been
criticized for the often confusing a rray of elements attributed to
it a nd the varied interpretations given those elements by courts,
. Harvey I. Saferstein, The Ascendancy of Business Tort Claims in Antitrust
Pra ctice, 59 ANTITRUST L.J. 379, 383-85, 392, 403 (1991).
. See, e.g., Stearns Airport Equip. v. FMC Corp., 170 F.3d 518
(5th Cir. 1999); Hannex Corp. v. GMI, Inc. 140 F.3d 194 (2d Cir. 1998);
ID Sec. Sys. Canada, Inc. v. Checkpoint Sys., 249 F. Supp. 2d 622 (E.D.
Pa. 2003) , order amended, 268 F. Supp. 2d 448 (E.D. Pa. 2 003);
Southeast Integrated Med. v. N. Fla. Women’s Physicia ns, 50 So. 3d 21
(Fla. Dist. Ct. App. 2010); Chicago ’s Pizza, Inc. v. Chicago’s
Pizza Franchise Ltd. USA, 893 N.E.2d 981 (Ill. App. Ct. 2008);
White P lains Coat & Apron Co. v. Cintas Corp., 867 N.E.2d 381 (N.Y.
. See, e.g., Cole v. Homier Distrib. Co., 599 F.3d 856 (8th Cir. 2010);
Weicht v. Suburban Newspapers of Greater St. Louis, Inc., 32 S.W.3d
592 (Mo. Ct. App. 2000) (addressing claims of tortious interference
against newspaper chain brought by independent contract carriers who
held distribution and delivery route s for newspaper chain); Watson’s
Carpet and Floor Coverings, Inc. v. McCormick, 247 S.W.3d 169 (Tenn.
Ct. App. 2007).
. See, e.g., Star Tobacco Inc. v. Darilek, 298 F. Supp. 2d 436 (E.D. Tex.
2003); ID Security Sys. Canada, 249 F. Supp. 2d at 663-69; Watson’s
Carpet and Floo r Coverings, 247 S.W.3d at 185; see also Logic Process
Corp. v. Bell & Howell Publ’ns Sys. Co., 162 F. Supp. 2d 533 (N.D. Tex.
2001); Habitat, Ltd. v. The Art of Muse, Inc., 91 6 N.Y.S.2d 174 (App.
Div. 2011).
112 Business Torts and Unfair Competition Hand book
it remains a popular claim.
As discussed in other chapters,
popularity of tortious interference claims may be attributed to
many factors, not the lea st of which is the potential availability
of punitive damages gr eatly in excess of tr eble damage antitrust
A. Introduction
Scholars have traced the origins of tortious interference laws to
Roman law, which allowed a man to sue for harms inflicted on members
of his household.
As late as the early nineteenth century, however,
traditional tort law did not yet recognize business torts.
When the courts
first began to allow actions for economic interference, they did so only in
situations where an intentional wrong such as physical violence, fraud, or
defamation interfered with a contractual relationship.
As interference
. See genera lly Martin W. Siemer, Tortious Interference with Contract: A
Tort on the Brink of Extinction, 85 ILL. B.J. 322, 322 (July 1 997)
(“[C]onfusion relating to some of the elements of the tor t have
diminished its effect as an intimidating weapon . . . the very existence of
the tort as a viable cau se of action is threatened.”); Robert L. Tucker,
“And the Truth Shall Make You F ree”: Truth as a First Amendment
Defense in Tortious In terference with Contract Cases, 24 H ASTINGS
CONST. L.Q. 709, 717 (Spring 1997) (“Recognition of tortious
interference with contract has not won universal acclaim” because o f its
undefined nature and potential effect on “commerce and individual
liberty.”); George Freeman, et al., 60 Minutes’ and the Law: Can
Journa lists be Liable for Tortious Interference with Contract? , 68 N.Y.
ST. B.J. 24, 24 (July/August 1996) (“At the outset it should be noted that
the tort of interference with contract has been subject to intense
. See Chapters I, II.
. See Chapter VIII; Kelco Disposal, Inc. v. Browning-Ferris Indus. of
Vermont, Inc., 845 F.2d 404, 407 (2d Cir. 1988).
. See Wal-Mart Stores v. Sturges, 5 2 S.W.3d 711, 716 (Tex. 2001)
(discussing the history of civil liability for interference).
. See gener ally Note, Tortious Interference with Co ntractual Relations in
the Nineteenth Century: The Transformation of P roperty, Contract and
Tort, 93 HARV. L. REV. 1510 (1980). But see Sturges, 52 S.W.3d at 716
(noting that common law may have recognized liability for actio ns such
as driving away a business’s customers as early as the Fourteenth
. See Stur ges, 52 S.W.3d at 716 (discussing history o f civil liability for
The Interference Torts 113
torts evolved, liability eventually was found without proof of such
wrongful or illegal conduct.
Unlike traditional intentional torts such as assault and battery, where
liability is likely to result upon proof of prima facie elements, there is no
“bright line” defining improper economic interference. Rather, the issue
often is whether the interference is justified under the circumstances.
the context of an increasingly complex economy, it often is difficult to
determine the point at which a competitor violates “the rules of the
game,” dividing acceptable and unacceptable conduct. The nature of the
interfering conduct, the interest of the party being interfered with, and
the relationship of the parties, are three of many factors to be
Today the interference torts seek to draw “a line beyond which no
member of the community may go in intentionally intermeddling with
the business affairs of others.”
The case law, however, abounds with
considerable differences in the elements required to be proven, the
available privileges, and the burdens of proof. For example, several
states require a plaintiff to prove that the defendant’s interference is not
privileged or justified, while others require the defendant to establish
privilege or justification as an affirmative defense, and still others are
split on the issue depending on whether the interference is with contract
or prospective business relations.
In short, the contours of justification
. For example, in Lumley v. Gye, 118 Eng. Rep. 749 (Q.B. 1853), a theater
owner persuaded a singer to break her contract to sing at another theater.
The court found liability on the basis that the nontortious interferen ce was
intentional. See Salter v. Howard, 43 Ga. 601 (1871) (enticement action
extended to sharecroppers); Walker v. Croni n, 107 Mass. 555 (1871)
(enticement action extended to workers engaged in boot manufacture).
. See Imperial Ice Co. v. Rossier, 112 P .2d 631 (Cal. 1941); RESTATEMENT
(SECOND) OF TORTS ch. 37 & intro. note at 4-7 (1979) [hereinafter
LAW OF TORTS §§ 129-30 (5th ed. 1984) [hereinafter KEETON].
. See, e.g., Carvel Corp. v. Noonan, 3 N.Y.3d 182, 196 (2004). See
genera lly RESTATEMENT, supra note 12, § 767.
. City of Rock Falls v. Chi. Title & Trust Co., 300 N.E.2d 331, 333 (Ill.
App. Ct. 1973).
. Compare Data Based Systems, Int’l v. Hewlett-Packard Co., 2001 WL
1251212, at *13 (E .D. Pa. 2001) (explaining that plaintiff must show that
defendant was not privileged or justified) with Mason v. Wal-Mart Stores,
969 S.W.2d 160, 165 (Ark. 1998) (explaining that plaintiff must show
“improper” interference and burden is on defendant to show that the
interference was privileged) and Wal-Mart Stores, Inc. v. Sturges,

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