The Interference Torts

• Pages: 111-168

111

CHAPTER V

THE INTERFERENCE TORTS

The field of tor tious interference occupies the greatest a rea

of overlap between business torts and “traditional” antitrust

claims.

1

Because the essence of tortious interference is the

wrongful disruption of business rela tionships, such claims

frequently are asserted in disputes between competitors

2

as well

as between firms occupying different levels of the distribution

chain.

3

Not infrequently, the same commercial conduct is

challenged under both theories.

4

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,

1

. Harvey I. Saferstein, The Ascendancy of Business Tort Claims in Antitrust

Pra ctice, 59 ANTITRUST L.J. 379, 383-85, 392, 403 (1991).

2

. 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.

2007).

3

. 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).

4

. 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.

5

As discussed in other chapters,

6

the

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

awards.

7

– Eds.

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.

8

As late as the early nineteenth century, however,

traditional tort law did not yet recognize business torts.

9

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.

10

As interference

5

. 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

criticism.”).

6

. See Chapters I, II.

7

. See Chapter VIII; Kelco Disposal, Inc. v. Browning-Ferris Indus. of

Vermont, Inc., 845 F.2d 404, 407 (2d Cir. 1988).

8

. See Wal-Mart Stores v. Sturges, 5 2 S.W.3d 711, 716 (Tex. 2001)

(discussing the history of civil liability for interference).

9

. 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

Century).

10

. See Stur ges, 52 S.W.3d at 716 (discussing history o f civil liability for

interference).

The Interference Torts 113

torts evolved, liability eventually was found without proof of such

wrongful or illegal conduct.

11

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.

12

In

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

considered.

13

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.”

14

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.

15

In short, the contours of justification

11

. 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).

12

. 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

RESTATEMENT]; W. PAGE KEETON ET AL., PROSSER & KEETON ON THE

LAW OF TORTS §§ 129-30 (5th ed. 1984) [hereinafter KEETON].

13

. See, e.g., Carvel Corp. v. Noonan, 3 N.Y.3d 182, 196 (2004). See

genera lly RESTATEMENT, supra note 12, § 767.

14

. City of Rock Falls v. Chi. Title & Trust Co., 300 N.E.2d 331, 333 (Ill.

App. Ct. 1973).

15

. 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,