The Interference Torts

Survey evidence suggests that the field of tortious
interference occupies the greatest area of overlap between
business torts and “traditional” antitrust claims.1 Because the
essence of tortious interference is the wrongful disruption of
business relationships, such claims frequently are asserted in
disputes between competitors2 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 array of elements attributed to it and the varied
interpretations given those elements by courts, it remains a
popular weapon.5 As discussed in other chapters,6 the
1. Harvey I. Saferstein, The Ascendancy of Business Tort Claims in Antitrust
Practice, 59 ANTITRUST L.J. 379, 383-85, 392, 403 (1991).
2. See,e.g., Hannex Corp. v. GMI, Inc. 140 F.3d 194 (2d Cir. 1998); Stearns
Airport Equip. v. FMC Corp., 170 F.3d 518 (5th Cir. 1999); ID Sec. Sys.
Canada, Inc. v. Checkpoint Sys., Inc., 249 F. Supp. 2d 622 (E.D. Pa.
3. See,e.g., Weicht v. Suburban Newspapers of Greater St. Louis, Inc., 32
S.W.3d 592 (Mo. Ct. App. 2000) (identifying independent contract carriers
who held distribution and delivery routes for newspaper chain claims of
tortuous interference against newspaper chain).
4. See,e.g.,ID Security Sys. Canada, Inc., 249 F. Supp. 2d at 663-69; Star
Tobacco Inc. v. Darilek, 298 F. Supp. 2d 436 (E.D. Tex. 2003); see also
Logic Process Corp. v. Bell & Howell Publ’ns Sys. Co., 162 F. Supp. 2d
533 (N.D. Tex. 2001).
5. Martin W. Siener, Tortious Interference with Contract: A Tort on the
Brink of Extinction, 85 ILL. B.J. 322 (July 1997) (“[C]onfusion relating to
some of the elements of the tort have diminished its effect as an
intimidating weapon [and] the very existence of the tort as a viable cause
of action is threatened.”); Robert L. Tucker, “And the Truth Shall Make
You Free”: Truth as a First Amendment Defense in Tortious Interference
with Contract Cases, 24 HASTINGS CONST. L.Q. 709 (Spring 1997)
106 Business Tort Law
popularity of tortious interference claims may be attributed to
many factors, not the least of which is the potential availability
of punitive damages greatly in excess of treble 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
torts evolved, liability eventually was found without proof of such
wrongful or illegal conduct.11
(“Recognition of tortious interference with contract has not won universal
acclaim” because of its undefined nature and potential effect on
“commerce and individual liberty.”); George Freeman, et al., ‘60 Minutes’
and the Law: Can Journalists be Liable for Tortious Interference with
Contract?, 68 N.Y. ST. B.J. 24 (July/August 1996) (“[A]t the outset it
should be noted that the tort of interference with contract has been subject
to intense criticism.”).
6. See Chapters 1, 2.
7. See Chapter 8; Kelco Disposal, Inc. v. BFI, 845 F.2d 404, 407 (2d Cir.
8. See Wal-Mart Stores, Inc. v. Sturges, 52 S.W.3d 711, 716 (Tex. 2001)
(discussing the history of civil liability for interference).
9. See generally Note, Tortious Interference with Contractual Relations in
the Nineteenth Century: The Transformation of Property, Contract and
Tort, 93 HARV. L. REV. 1510 (1980). But see Sturges, 52 S.W.3d at 716
(noting that the common law may have recognized liability for actions
such as driving away a business’s customers as early as the fourteenth
10. See Sturges, 52 S.W.3d at 716 (discussing the history of civil liability for
11. For example, in Lumley v. Gye, (1843) 118 Eng. Rep. 740, 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 interference was
intentional; see also Salter v. Howard, 43 Ga. 601 (Ga. 1871) (enticement
action extended to sharecroppers); Walker v. Cronin, 107 Mass. 555
The Interference Torts 107
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
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
(1871) (enticement action extended to workers engaged in boot
12. See Imperial Ice Co. v. Rossier, 112 P.2d 631 (Cal. 1941). See generally
RESTATEMENT (SECOND)OF TORTS ch. 37 & intro. note at 4-7 (1979)
THE LAW OF TORTS §§ 129-30 (1984) [hereinafter KEETON] .
13. See, e.g., Carvel Corp. v. Noonan, 3 N.Y.3d 182, 196 (N.Y. 2004); see
generally RESTATEMENT,supra note 12, § 767.
14. City of Rock Falls v. Chicago Title & Trust Co., 300 N.E.2d 331, 333 (Ill.
App. Ct. 1973).
15. Compare Data Based Systems, Int’l, Inc. v. Hewlett-Packard Co., No.
CIV. 00-CV-4425, 2001 WL 1251212 (E.D. Pa. Sept. 26, 2001)
(explaining that plaintiff must show that defendant was not privileged or
justified) with Mason v. Wal-Mart Stores, Inc., 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) with
Wal-Mart Stores, Inc. v. Sturges, 52 S.W.3d 711, 725 (Tex. 2001). In
Sturges the Court noted that “[a]lthough the burden of proving a
justification or privilege in a tortious interference with contract case is on

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