The Interference Torts

• Pages: 105-149

CHAPTER V

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.

2003).

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.

1988).

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

century).

10. See Sturges, 52 S.W.3d at 716 (discussing the history of civil liability for

interference).

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

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

(1871) (enticement action extended to workers engaged in boot

manufacture).

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)

[hereinafter RESTATEMENT]; W. PAGE KEETON, PROSSER AND KEETON ON

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