§ 768 Competition as Proper or Improper Interference

§ 768 Competition as Proper or Improper Interference, Restatement (Second) of Torts §...

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Restatement (Second) of Torts § 768 (1979)

Restatement of the Law - Torts | June 2021 Update

Restatement (Second) of Torts

Division Nine. Interference with AdvantageousEconomic Relations

Chapter 37. Interference with Contract or Prospective Contractual Relation

§ 768 Competition as Proper or Improper Interference

Comment:Reporter's NoteCase Citations - by Jurisdiction

(1) One who intentionally causes a third person not to enter into a prospective contractual relation with anotherwho is his competitor or not to continue an existing contract terminable at will does not interfere improperly withthe other's relation if

(a) the relation concerns a matter involved in the competition between the actor and the other and (b) the actor does not employ wrongful means and (c) his action does not create or continue an unlawful restraint of trade and (d) his purpose is at least in part to advance his interest in competing with the other.

(2) The fact that one is a competitor of another for the business of a third person does not prevent his causing abreach of an existing contract with the other from being an improper interference if the contract is not terminableat will.

Comment:

a. In general. This Section differentiates between interference with an existing contract (see §§ 766, 766A) and interferencewith a prospective contractual relation. (See § 766B). Under the conditions stated in Clauses (a) through (d) of Subsection (1),competition is not an improper basis for interference in the latter situation. If one party is seeking to acquire a prospectivecontractual relation, the other can seek to acquire it too. Even an option to renew or extend a contract is prospective while notexercised. But an existing contract, if not terminable at will, involves established interests that are not subject to interferenceon the basis of competition alone. However, the fact that the actor is not justified on the basis of competition is not conclusiveof his liability. His action may be justified for other reasons.

Like § 767, this Section speaks of an interference that is improper or not, rather than of a specific privilege because there is noconsensus that engaging in competition is an affirmative defense to be raised and proved by the defendant or is instead simply

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not improper conduct inconsistent with the American system of free enterprise. In either event the provisions of this Sectionare applicable. (See § 767, Comments b and k; and also the Special Note to this Chapter, immediately preceding § 766).

Comment on Subsection (1):

b. Basis of the rule in this Section. The rule stated in this Section is a special application of the factors determining whetheran interference is improper or not, as stated in § 767. One's privilege to engage in business and to compete with others impliesa privilege to induce third persons to do their business with him rather than with his competitors. In order not to hampercompetition unduly, the rule stated in this Section entitles one not only to seek to divert business from his competitors generallybut also from a particular competitor. And he may seek to do so directly by express inducement as well as indirectly by attractiveoffers of his own goods or services. The only limitations upon this are those stated in Clauses (a) to (d).

c. Competition between actor and the person harmed. The rule stated in this Section applies whether the actor and the personharmed are competing as sellers or buyers or in any other way, and regardless of the plane on which they compete. Thus the ruleapplies whether the actor and the other are competing manufacturers or wholesalers or retailers or competing banks, newspapersor brokers. It applies when they are competing for the purchase of a farmer's tobacco crop or cattle as well as when they arecompeting for the sale of the crop or cattle. It applies also to the indirect competition between a manufacturer whose goods aremarketed by independent retailers and a retailer who markets the competing goods of another manufacturer.

Comment on Clause (a):

d. The diverted business. The rule stated in this Section applies only in the situation in which the business diverted from thecompetitor relates to the competition between him and the actor. It does not apply when the business diverted by the actor doesnot relate to his competition with his competitor.

Illustrations: 1. A and B are competing distributors of shoes. A induces prospective customers of B to buy shoes from A

instead of from B. A's interference with B's prospective business is not improper under the conditions statedin this Section.

2. A and B are competing distributors of shoes. A induces C not to purchase B's dwelling. A's interferencewith B's prospective business is improper under the rule stated in this Section.

3. A is B's employer and C is the carrier of A's employer's liability insurance. B, having been injured in thecourse of his employment, presents his claim. He rejects an offer of settlement made by C on the ground of itsinadequacy and brings suit on his claim. C informs B that unless he will accept the settlement he will lose hisjob with A. Upon B's refusal, C causes A to discharge B by threatening to cancel all A's insurance with C. Cis subject to liability to B and the interference is improper under the rule stated in this Section.






B and C, in Illustration 3, are in a bargaining struggle resembling competition. But their competition has no relation to B'scontinued employment by A. Other reasons may also make for a holding that the interference was improper under thesecircumstances. C's conduct may contravene the public policy expressed in worker's compensation legislation, or, in view of therelative positions of C and B, C's conduct may be deemed otherwise unduly oppressive and unreasonable. The case might bedifferent if the reason for C's procuring B's discharge were that B was a hypochondriac and a chronic claimant of work accidentcompensation. (See § 769).

Comment on Clause (b):

e. Means of inducement. If the actor employs wrongful means, he is not justified under the rule stated in this Section. Thepredatory means discussed in § 767, Comment c, physical violence, fraud, civil suits and criminal prosecutions, are all wrongfulin the situation covered by this Section. On the other hand, the actor may use persuasion and he may exert limited economicpressure. Subject to Clause (c) (see Comment f), he may refuse to deal with the third persons in the business in which hecompetes with the competitor if they deal with the competitor. Or he may refuse other business transactions with the thirdperson relating to that business.

The rule stated in this Section rests on the belief that competition is a necessary or desirable incident of free enterprise.Superiority of power in the matters relating to competition is believed to flow from superiority in efficiency and service. Ifthe actor succeeds in diverting business from his competitor by virtue of superiority in matters relating to their competition,he serves the purposes for which competition is encouraged. If, however, he diverts the competitor's business by exerting asuperior power in affairs unrelated to their competition there is no reason to suppose that his success is either due to or willresult in superior efficiency or service and thus promote the interest that is the reason for encouraging competition. For thisreason economic pressure on the third person in matters unrelated to the business in which the actor and the other compete istreated as an improper interference.

Comment on Clause (c):

f. Illegal restraint of competition. The actor's interference is improper under the rule stated in this Section if his conduct isintended illegally to restrain competition. One who refuses to deal with another in order to establish or maintain an illegalmonopoly is subject to liability to the other. Obviously he is subject to liability if for the same purpose he intentionally causesthird persons not to deal with the other. Federal legislation and statutes in many States prohibit inducement not to deal withcompetitors for the purpose or with the effect of unreasonably restraining competition. Thus § 3 of the Clayton Act, 15 U.S.C.§ 14, declares that “it shall be unlawful for any person … to lease or make a sale or contract for sale of goods … or fix a pricecharged therefor … on the condition, agreement or understanding that the lessee or purchaser thereof shall not use or deal inthe goods … of a competitor or competitors of the lessor or seller, where the effect of such lease, sale, or contract for sale orsuch condition, agreement or understanding may be to substantially lessen competition or tend to create a monopoly in anyline of commerce.”

Other pertinent federal legislation includes the Sherman Act, 15 U.S.C. §§ 1-7, especially § 2, and the Federal Trade CommissionAct, 15 U.S.C. §§ 41-58, especially § 45.

All of this legislation and the very extensive case law that has developed as a gloss upon it are pertinent to a great number ofthe cases in which this Section may be applicable. While there is therefore interplay between that law and the law of tortiousinterference with prospective contractual relations, that law is so involved and is so primarily concerned with areas of publiclaw only tangentially related to tort law that it must be regarded as outside the scope of the Restatement of Torts.

Comment on Clause (d):



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g. The actor's purpose. The rule stated in this Section developed to advance the actor's competitive interest and the supposedsocial benefits arising from it. If his conduct is directed, at least in part, to that end, the fact that he is also motivated by otherimpulses, as, for example, hatred or a desire for revenge is not alone sufficient to make his interference improper. But if hisconduct is directed solely to the satisfaction of his spite or ill will and not at all to the advancement of his competitive interestsover the person harmed, his interference is held to be improper. The limitation stated in Clause (d) overlaps that stated in Clause(a). If the business diverted by the actor relates to his competition with his competitor, his conduct will ordinarily be directed, atleast in part, to the improvement of his position in the competition. And if his conduct is directed to some other end, the divertedbusiness will ordinarily not be related to that competition. (Compare § 767, Comment d).

Comment on Subsection (2):

h. Inducing breach of contract. The rule that competition is not an improper interference with prospective contractual relationsas stated in Subsection (1) does not apply to inducement of breach of contract. When B is legally free to deal either with C orwith A, freedom to engage in competition implies a privilege on the part of A to induce B to deal with him rather than with C.But when B is legally obligated to deal with C, A is not justified by the mere fact of competition in inducing B to commit abreach of his legal duty. Under the general rule stated in § 767, the social interest in the security of transactions and the greaterdefiniteness of C's expectancy outweigh the interests in A's freedom of action in this situation. But the rule stated in Subsection(2) is limited to the case in which A's claim that his interference is not improper rests solely on the fact of competition andhis purpose to advance his interest in that competition, as stated in Subsection (1). His interference may be proper because ofother circumstances including the fact of competition. (See § 769). That fact does not negative the existence of a justificationappropriate on other grounds.

i. Contracts terminable at will. The rule stated in Subsection (1) that competition may be an interference that is not improperalso applies to existing contracts that are terminable at will. If the third person is free to terminate his contractual relation withthe plaintiff when he chooses, there is still a subsisting contract relation; but any interference with it that induces its terminationis primarily an interference with the future relation between the parties, and the plaintiff has no legal assurance of them. Asfor the future hopes he has no legal right but only an expectancy; and when the contract is terminated by the choice of thethird person there is no breach of it. The competitor is therefore free, for his own competitive advantage, to obtain the futurebenefits for himself by causing the termination. Thus he may offer better contract terms, as by offering an employee of theplaintiff more money to work for him or by offering a seller higher prices for goods, and he may make use of persuasion orother suitable means, all without liability.

An employment contract, however, may be only partially terminable at will. Thus it may leave the employment at the employee'soption but provide that he is under a continuing obligation not to engage in competition with his former employer. Under thesecircumstances a defendant engaged in the same business might induce the employee to quit his job, but he would not be justifiedin engaging the employee to work for him in an activity that would mean violation of the contract not to compete.

Reporter's Note

This Section has been changed by posing the question in terms of whether the interference was improper rather than of aprivilege, by including an existing contract terminable at will and by the addition of Subsection (2).

Recognizing the principle of this Section in general, see: Marmis v. Solot Co., 117 Ariz.App. 499, 573 P.2d 899 (1977), reviewdenied; Charles C. Chapman Bldg. Co. v. California Mart, 2 Cal.App.3d 846, 82 Cal.Rptr. 830 (1969), rehearing denied; Katzv. Kopper, 7 Cal.App.2d 1, 44 P.2d 1060 (1935); Harry A. Finman & Son, Inc. v. Connecticut Truck & Trailer Serv. Co.,169 Conn. 407, 363 A.2d 86 (1975); Republic Systems and Programming, Inc. v. Computer Assistance, Inc., 322 F.Supp. 619(D.Conn.1970); Bowl-Mor Co. v. Brunswick Corp., 297 A.2d 61 (Del.Ch.1972), appeal dism., 297 A.2d 67 (Del.1972); LakeGateway Motor Inn v. Matt's Sunshine Gift Shops, Inc., 361 So.2d 769 (Fla.App.1978); Southland Reship, Inc. v. Flegel, 401F.Supp. 339 (N.D.Ga.1975); Candalaus Chicago v. Evans Mill Supply Co., 51 Ill.App.3d 38, 9 Ill.Dec. 62, 366 N.E.2d 319




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(1977); Supreme Sav. & Loan Ass'n v. Lewis, 130 Ill.App.2d 16, 264 N.E.2d 857 (1970); Moye v. Eure, 21 N.C.App. 261,204 S.E.2d 221 (1974), cert. denied, 285 N.C. 590, 205 S.E.2d 723 (1974); Martin v. Phillips Petroleum Co., 455 S.W.2d 429(Tex.Civ.App.1970); Mogul S.S. Co. v. McGregor, Gow & Co., 23 Q.B.D. 598 (1889), aff'd [1892] A.C. 25.

Comment b:See Lowell v. Mother's Cake & Cookie Co., 79 Cal.App.3d 13, 144 Cal.Rptr. 664 (1978).

Comment c:See Chanay v. Chittenden, 115 Ariz. 32, 563 P.2d 287 (1977) (interference improper when defendant not competitorat time of inducement though he later became one); Tuttle v. Buck, 107 Minn. 145, 119 N.W. 946 (1909) (price cutting solelyto drive plaintiff out of business).

Comment e:On whether the means of competition are wrongful, see Ulan v. Vend-a-Coin, Inc., 27 Ariz.App. 713, 558 P.2d 741(1976); Bowl-Mor Co., Inc. v. Brunswick Corp., 297 A.2d 61 (Del. Ch. 1972), appeal dism., 297 A.2d 67 (Del.1972); Azarv. Lehigh Corp., 364 So.2d 860 (Fla.App.1978) (“contemporary business standards”); Orkin Exterminating Co. v. Martin Co.,240 Ga. 662, 242 S.E.2d 135 (1976); Grillo v. Board of Realtors of Plainfield Area, 91 N.J.Super. 202, 219 A.2d 635 (1966);Marino Industries Corp. v. Kahn Lbr. Co., Inc., 61 A.D.2d 978, 402 N.Y.S.2d 446 (1978) (information obtained by deceit for usein bidding); Anchor Alloys, Inc. v. Non-Ferrous Processing Corp., 39 A.D.2d 504, 336 N.Y.S.2d 944 (1972); Light v. TransportIns. Co., 469 S.W.2d 433 (Tex.Civ.App.1971) (contract used for inducement illegal); Island Air, Inc. v. LaBar, 18 Wash.App.129, 566 P.2d 972 (1977).

Comment f:On illegal restraint of competition, see Willis v. Santa Ana Community Hosp. Ass'n, 58 Cal.2d 806, 26 Cal.Rptr.640, 376 P.2d 568 (1962); Tokuzo Shida v. Japan Food Corp., 251 Cal.App. 864, 60 Cal.Rptr. 43 (1967); Grillo v. Board ofRealtors of Plainfield Area, 91 N.J.Super. 202, 219 A.2d 635 (1966).

Comment g:Purpose. See Motorola, Inc. v. Fairchild Camera & Instrument Corp., 366 F.Supp. 1173 (D.Ariz.1973); A.F. Arnold& Co., Ltd. v. Pacific Professional Ins. Inc., 27 Cal.App.3d 710, 104 Cal.Rptr. 96 (1976); Tokuzo Shida v. Japan Food Corp.,251 Cal.App.2d 864, 60 Cal.Rptr. 43 (1967); Candalaus Chicago v. Evans Mill Supply Co., 51 Ill.App.3d 38, 9 Ill.Dec. 62,366 N.E.2d 319 (1977); Anchor Alloys, Inc. v. Non-Ferrous Processing Corp., 39 A.D.2d 504, 336 N.Y.S.2d 944 (1972);International Election Systems Corp. v. Shoup, 452 F.Supp. 684 (E.D.Pa.1978), aff'd, 595 F.2d 1212 (3rd Cir.1979); HeriderFarms-El Paso, Inc. v. Criswell, 519 S.W.2d 473 (Tex.Civ.App.1975).

Subsection (2):The Section applies to contracts terminable at will. Triangle Film Corp. v. Artcraft Pictures Corp., 250 F. 981(2d Cir.1918); Ulan v. Vend-a-Coin, Inc., 27 Ariz.App. 713, 558 P.2d 741 (1976), review den.; Terry v. Dairymen's LeagueCooperative Ass'n, 2 A.D.2d 494, 157 N.Y.S.2d 71 (1956); Anchor Alloys, Inc. v. Non-Ferrous Processing Corp., 39 A.D.2d504, 336 N.Y.S.2d 944 (1974); Perfect Subscription Co. v. Kavaler, 427 F.Supp. 1289 (E.D.Pa.1977); Kingsbery v. PhillipsPetroleum Co., 315 S.W.2d 561 (Tex.Civ.App.1958).

It does not apply to other contracts. Gruen Watch Co. v. Artists Alliance, 191 F.2d 700 (9th Cir.1958); Republic Gear Co. v.Borg-Warner Corp., 406 F.2d 57 (7th Cir.1969), cert. denied, 394 U.S. 1000, 89 S.Ct. 1596, 22 L.Ed.2d 777 (1969); ImperialIce Co. v. Rossier, 18 Cal.2d 33, 112 P.2d 631 (1941); Sorenson v. Chevrolet Motor Co., 171 Minn. 260, 214 N.W. 754 (1927);Moye v. Eure, 21 N.C.App. 261, 204 S.E.2d 221 (1974), cert. denied, 285 N.C. 590, 205 S.E.2d 723 (1974). See also Guard-Life Corp. v. S. Parker Hardware Mfg. Corp., 50 N.Y.2d 183, 428 N.Y.S.2d 628, 406 N.E.2d 445 (1980).

Case Citations - by Jurisdiction

C.A.1, C.A.1 C.A.2


































































C.A.3 C.A.4 C.A.5 C.A.6, C.A.6 C.A.7 C.A.8, C.A.8 C.A.9 C.A.10 C.A.11 C.A.D.C. C.A.Fed. N.D.Ala. D.Ariz. E.D.Ark. D.Colo. D.Conn. D.Del. D.D.C. N.D.Ga. D.Idaho N.D.Ill. N.D.Ill.Bkrtcy.Ct. N.D.Ind. S.D.Ind. D.Kan. W.D.Ky. D.Md. D.Mass. D.Minn. S.D.Miss. E.D.Mo. W.D.Mo. D.N.H. D.N.J. E.D.N.Y. N.D.N.Y. S,D.N.Y. S.D.N.Y. S.D.N.Y.Bkrtcy.Ct. N.D.Ohio S.D.Ohio, S.D.Ohio S.D.Ohio Bkrtcy.Ct. D.Or. E.D.Pa. M.D.Pa. W.D.Pa.



W.D.Pa.Bkrtcy.Ct. E.D.Tenn. M.D.Tenn. S.D.Tex. D.Utah D.Vt. S.D.W.Va. E.D.Wis. E.D.Wis.Bkrtcy.Ct. Ala. Ariz.App. Ark. Ark.App. Cal. Cal.App. Colo. Colo.App. Del. Del.Ch. Del.Super. Fla. Fla.App. Ga.App. Hawaii App. Idaho App. Ill.App. Ind.App. Iowa Iowa App. Md. Md.Spec.App. Mass.App. Mich.App. Minn. Minn.App. Mo.App. Neb. N.H. N.J. N.J.Super.App.Div. N.J.Super. N.M.App. N.Y. N.Y.Sup.Ct.App.Div. N.Y.Sup.Ct. N.C.App. Ohio Ohio App. Or.



Or.App. Pa. Pa.Super. Tenn.App. Tex. Tex.App. Utah Vt. Va. W.Va. Wis.App. Wyo.

C.A.1,

C.A.1, 2019. Com. (a) cit. in sup. Exclusive agent for reseller of a rare automobile owned by a third-party collector brought aclaim for tortious interference with an existing contract against buyers who initially rejected agent's offer, but later contactedreseller to purchase the automobile from him directly, such that reseller did not pay agent a commission. The district court grantedbuyers' motion to dismiss. This court reversed in part and remanded, holding that agent plausibly pleaded that buyers tortiouslyinterfered with his exclusive agreement with reseller. The court cited the Restatement Second of Torts in reasoning that, whilecompetition did not necessarily amount to impermissible interference with a prospective contract, competitive conduct inducingthe breach of an existing contract was potentially actionable where a defendant exerted improper economic pressure, and,here, agent claimed that buyers went beyond merely offering reseller more money, by threatening to interfere with reseller'srelationship with the third-party collector, so that reseller would lose the opportunity to sell other cars from the third party'scollection. Hamann v. Carpenter, 937 F.3d 86, 91.

C.A.1, 2014. Cit. in case cit. in sup. Corporation brought an action for tortious interference with contractual and businessexpectancies, inter alia, against competitor, alleging that competitor used corporation's confidential information to woo awaysuppliers and persuade them to stop filling corporation's orders. The district court entered judgment on a jury verdict finding fordefendant on the tortious-interference claims. Affirming, this court held that the jury received a proper instruction on tortiousinterference, and there was no conceivable risk that—as plaintiff contended—a reasonable juror would have understood theinstruction as setting up a presumption that defendant's efforts at competition were legitimate. The court noted that, underRestatement Second of Torts § 768, which had been cited in prior First Circuit caselaw, legitimate competition between businessrivals constituted a justification for interference. Ira Green, Inc. v. Military Sales & Service Co., 775 F.3d 12, 22.

C.A.1

C.A.1, 2006. Quot. in case quot. in ftn. Sub-distributor, acting as middleman, sued buyer and seller who bypassed sub-distributorand distributor to contract with each other directly. The district court, inter alia, granted summary judgment for seller on plaintiff'sclaim for tortious interference with contractual relations. Affirming as to this claim, this court held that the record evidencedid not support a finding that it was “reasonably definite” that plaintiff and distributor would have been chosen to providebuyer with products in the absence of the interference. In making its decision, the court observed that conduct in furtherance ofbusiness competition was generally held to justify interference with others' contracts, so long as the conduct involved neitherwrongful means nor unlawful restraint of trade. APG, Inc. v. MCI Telecommunications Corp., 436 F.3d 294, 304.

C.A.1, 1990. Cit. in disc. A basketball player refused to comply with an arbitrator's decision that, under the terms of a five-yearcontract with a National Basketball Association (NBA) team, he must rescind a contract with an Italian team. The district courtgranted the NBA team a preliminary injunction and an order enforcing the arbitration award. This court affirmed, holding thatthe issuance of a preliminary injunction was legally proper. The player argued that equitable relief was improper because of the“unclean hands” of the NBA team, alleging that he had signed the contract in a weak moment of homesickness and depression,

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without representation by an agent, at the urging of the NBA team, without fully understanding the contract or the ramificationsof signing it. The court concluded that the hands of the NBA team were not “unclean” based on evidence that the player was acollege graduate who had played with the same team under a similar agreement in the past, that he had successfully bargainedfor the contract, had read and understood it, and had failed to complain about the contract before he announced that he wouldnot honor it. Boston Celtics Ltd. Partnership v. Shaw, 908 F.2d 1041, 1049.

C.A.1, 1989. Quot. in disc. An HMO and a certified class of the HMO's participating physicians sued a health insurer forunlawfully excluding them from the health care insurance market. A jury found that the defendant had violated antitrust laws,and was liable for tortious interference with contract between the HMO and the physicians, but the district court granted thedefendant's motion for judgment n.o.v., holding that the defendant's conduct was legitimate competitive activity not prohibitedby antitrust laws. Affirming, this court held that the defendant's introduction of new health insurance programs and pricingschemes were exempt from antitrust scrutiny, and the defendant's refusal to pay the physicians more for a service than theplaintiff paid did not constitute tortious interference with existing contractual relationships between the HMO and its physicians.The court said that conduct in furtherance of business competition justified interference with others' contracts, so long as theconduct was not illegal or in restraint of trade. Ocean State Physicians Health Plan v. Blue Cross, 883 F.2d 1101, 1113, certioraridenied 494 U.S. 1027, 110 S.Ct. 1473, 108 L.Ed.2d 610 (1990).

C.A.2

C.A.2, 2003. Quot. in disc., cit. in case cit. in disc., coms. (a) and (e) cit. in disc. Franchisor brought suit against franchiseesfor a declaratory judgment that its distribution practices did not violate the terms of its franchise agreements. Franchiseescounterclaimed for, in part, intentional interference with prospective economic relations. The district court entered judgmentfor franchisees on their counterclaims. This court certified to the New York Court of Appeals the question, in part, of whetherfranchisor's conduct violated the applicable standards for a claim of tortious interference with prospective economic relations.This court asked, additionally, whether New York would view franchisor as a competitor of franchisees for the purpose ofdetermining the applicable standards, and, if so, whether a plaintiff had to show that a competitor-defendant acted “wrongfully”but show that a noncompetitor-defendant acted only “improperly.” Carvel Corp. v. Noonan, 350 F.3d 6, 19-21.

C.A.2, 2003. Com. (e) quot. in sup. Developer of bingo facility sued casino corporation for intentional interference withdeveloper's contractual and prospective business relationship with Indian tribe concerning management of bingo facility. Districtcourt granted defendant's motion to dismiss. This court affirmed dismissal of claim for tortious interference with contract, andvacated dismissal of claim for tortious interference with business relations. The court held, inter alia, that fact issues existed asto whether plaintiff's allegations of economic pressure were of the degree necessary to sustain a claim. The court stated that thelack of a valid contract was not a barrier to a claim for tortious interference with business relations. Scutti Enterprises, LLC. v.Park Place Entertainment Corp., 322 F.3d 211, 216, on remand 2005 WL 2000157 (W.D.N.Y.2005).

C.A.3

C.A.3, 2009. Cit. and quot. in sup., adopted in case cit in sup., coms. (b) and (e) quot. in sup. Manufacturer of surgical implantsand related devices and its exclusive distributor sued former distributor that allegedly made unauthorized sales of manufacturer'sproducts after its distributorship was terminated. The district court entered judgment on a jury verdict for plaintiffs. Reversingthe district court's denial of defendant's motion for judgment as a matter of law on plaintiffs' claim of tortious interference withexisting or prospective contracts, this court held that, in the absence of evidence that defendant engaged in any independentlyactionable conduct, it was shielded under Pennsylvania law by the competition privilege from liability for selling its remaininginventory of manufacturer's products. Acumed LLC v. Advanced Surgical Services, Inc., 561 F.3d 199, 215, 216, 220.

C.A.3, 2004. Quot. and cit. in sup., com. (e) cit. and quot. in sup. and in ftn. Provider of rehabilitation therapy services tolong-term-care and assisted-living facilities brought claim for tortious interference with contractual relations against managingagent for two nursing home facilities following termination of provider's contract to provide therapy services. District court











entered judgment on jury verdict for provider. Affirming in part, this court held, inter alia, that managing agent's recruitmentof provider's therapists was independently actionable by owner of nursing homes as breach of agent's fiduciary duty to owner,and therefore supported jury finding that agent's actions were wrongful and tortious with respect to contract between providerand provider's therapists. CGB Occupational Therapy, Inc. v. RHA Health Services, inc., 357 F.3d 375, 388-390.

C.A.3, 2000. Cit. and quot. in sup., com. (e) quot. in disc. Potential buyer of seller's merchant credit card business suedactual buyer, among others, for, inter alia, tortious interference with contract. The district court entered summary judgment fordefendant. Affirming, this court held, in part, that defendant was entitled to invoke the competitor's privilege, since it acted toadvance its interest in competing with plaintiff and it employed no independently actionable wrongful means in completing thetransaction. National Data Payment Systems v. Meridian Bank, 212 F.3d 849, 857, 858.

C.A.3, 1998. Cit. in headnotes, cit. and quot. in sup., subsecs. (1)(b) and (1)(c) cit. in sup., subsec. (1)(d) cit. in headnote andsup., com. (e) cit. in headnote and cit. and quot. in sup. After a health-care company refused to approve a pharmacy's applicationfor membership in the company's network of medical prescription providers because the pharmacy would not discontinue itscontractual relationship with a consulting firm, the consulting firm sued the company for antitrust and RICO violations, andtortious interference with contractual relations, among other claims. The district court entered judgment on a jury verdict forplaintiff, but it ruled that plaintiff must elect which remedies it would recover. This court reversed and remanded for a newtrial on the tortious interference claim, holding, inter alia, that even though plaintiff produced sufficient evidence to allow areasonable jury to find that defendant employed wrongful means and thus acted outside the scope of the competitors' privilege,the district court erred in instructing the jury on “wrongful means.” There was ample evidence that defendant attempted toacquire the pharmacy's business by using heavy-handed tactics and threatening the pharmacy with withdrawal of its membershipin the provider network. Brokerage Concepts, Inc. v. U.S. Healthcare, Inc., 140 F.3d 494, 495, 499, 503, 529-532, 534.

C.A.3, 1979, as amended, 1979, 1980. Subsec. (1) cit. and quot. in part in disc., subsec. (1)(b) cit. in disc. and com. (e) cit. inconc. and diss. op. The plaintiff, the owner of a chain of retail music stores, brought an action against the former president of hiscompany for breach of his fiduciary duty to the plaintiff and against both the president and the defendant broadcasting companiesfor interfering with the business relations between the plaintiff and his own employees and for engaging in a conspiracy to injureand destroy the plaintiff's business. The plaintiff asserted that the broadcasting companies had decided to enter the retail musicbusiness and held a series of meetings with the president, while he was still employed by the plaintiff, to discuss the acquisitionof the plaintiff's business by these defendants. Representatives of the defendant companies were shown an allegedly confidentialdata processing system as a part of the meetings. The plaintiff was not informed of these meetings until the president told himthat he was leaving to join the broadcasting companies and that these companies were preparing to make a series of purchaseoffers for the plaintiff's business. The president continued to approach key employees of the plaintiff and successfully inducedthem to join the defendant companies. The president gave interviews to trade journals in which he disclosed the negotiationsfor acquisition and predicted that his new employer would be more successful than the plaintiff. Following the departure of thepresident and several key employees, the plaintiff's business incurred losses and he was forced to sell his stores at book value.The lower court entered a judgment notwithstanding the verdict. The appellate court found, inter alia, that the statements madeby the president did not constitute trade libel because, as a matter of law, they did not have a defamatory meaning. The appellatecourt also found that there was sufficient evidence to impose liability against the president and the broadcasting companies forinterference with the contractual relationships between the plaintiff and his employees by inducing the plaintiff's employees,through improper means, to leave their employ. The jury in the lower court had awarded punitive damages but the appellatecourt reversed because, although there was an underlying tort, there was not sufficient proof to show extreme or outrageousconduct necessary for an award of punitive damages. One judge stated, inter alia, in a concurring and dissenting opinion, thatthere was insufficient evidence to find that the broadcasting companies induced the employees to engage in improper acts orthat the defendants had used improper means to induce the plaintiff's employees to leave but rather that the defendants usednothing more than an ordinary sales pitch to get the employees to leave. Franklin Music v. American Broadcasting Companies,616 F.2d 528, 543-545, 563.








C.A.4

C.A.4, 2001. Cit. in sup. §§ 768-772. Holder of government contractor's accounts receivable brought interpleader suit againstbuyer of contractor's assets, assignee of contractor's accounts receivable, and buyer's lender to determine entitlement to contractproceeds. Buyer filed cross-claims for tortious interference with contractual relations and tortious interference with prospectiveeconomic advantage against assignee of contractor's accounts receivable. District court concluded that lender was entitled toproceeds and granted summary judgment for assignee on cross-claims. This court reversed in part and remanded, holding thatassignee's rights to contractor's accounts receivable were extinguished when contractor transferred government contracts tobuyer; thus assignee was not privileged to interfere with buyer's contractual relations on the ground that assignee had legitimatefinancial interest in contractor's receivables. Commerce Funding Corp. v. Worldwide Sec. Services Corp., 249 F.3d 204, 210,appeal after remand 78 Fed.Appx. 905 (4th Cir.2003).

C.A.4, 1993. Quot. in sup. A former beauty salon products distributor sued a competitor for conspiracy and intentionalinterference with contract after several manufacturers terminated an at-will distributorship contract and entered into adistributorship agreement with the competitor. The district court denied defendant's motion for judgment as a matter of law.The court of appeals reversed, holding that, under South Carolina law, the competition privilege shielded the competitor fromliability, as the competitor was merely engaging in the legitimate business practice of persuading a potential purchaser that itcould do a superior job. Waldrep Bros. Beauty Supply, Inc. v. Wynn Beauty Supply Co., Inc., 992 F.2d 59, 63.

C.A.4, 1982. Subsec. (1)(a) cit. in sup. The plaintiff, an applier of aluminum siding, filed an action against the defendant, asupplier of aluminum siding. The plaintiff had, in the past, bought exclusively from the defendant until the plaintiff decidedto expand its operation and become a distributor of siding materials to other appliers. After failing to discourage the plaintifffrom this plan, the defendant allegedly pursued a course of action designed to ruin the plaintiff and force it into bankruptcy.The plaintiff alleged, inter alia, that the defendant was liable for the tort of interference with business relations. A verdict wasrendered for the plaintiff in the trial court. On appeal, this court reversed on the grounds that the trial judge erred by failingto instruct the jury on the competitive privilege theory as a defense to the claim of interference with business relations. RCMSupply Co., Inc. v. Hunter Douglas, Inc., 686 F.2d 1074, 1078.

C.A.5

C.A.5, 2009. Cit. in ftn. Insurer of vehicle extended-service contracts sold to consumers by nonparty seller at dealerships broughta claim of tortious interference with contract against car manufacturer, alleging that defendant's decision to cease financingpurchases of such contracts insured by insurers that did not have a stability rating of A-or better caused seller to stop usingplaintiff as its insurer. The district court granted summary judgment for defendant. Affirming, this court held that, even ifdefendant changed its policy in order to increase the sales volume of its own competing products, plaintiff failed to provideany evidence that defendant lacked justification. The court noted defendant's argument that such actions done for competitiveadvantage would fall within the “competitor's privilege” under Restatement Second of Torts § 768. Marathon Financial Ins.,Inc., RRG v. Ford Motor Co., 591 F.3d 458, 468.

C.A.5, 1999. Cit. in headnotes, cit. and quot. in sup., cit. in ftn. After an oil company terminated a staffing support company'sright to perform services under their contract and entered into new contracts with different staffing support companies forperformance of the same services, the support company sued the oil company and a competing support company for breachof contract and tortious interference with contract. District court dismissed plaintiff's claims. This court affirmed, holding,inter alia, that the defendant support company was protected by the privilege of legitimate and proper business competition.Huffmaster v. Exxon Company, 170 F.3d 499, 504.

C.A.5, 1985. Cit. in ftn. in sup., subs. (2) cit. in sup., com. (i) cit. in sup. A computer maintenance firm sued another firmfor interference with existing contractual and prospective business relationships. The district court entered judgment for thedefendant. Affirming in part and reversing and remanding in part, this court ruled that the defendant's conduct did not constitute

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tortious interference with a contract because it involved merely an inducement to a party to the contract to exercise a rightunder that contract to terminate. Rejecting the defendant's argument that its alleged interference with the plaintiff's prospectivebusiness relationships was privileged competition, the court found that only fair competition was so privileged, and that aquestion of fact remained whether the defendant's competition met that standard. C.E. Services, Inc. v. Control Data Corp., 759F.2d 1241, 1248, 1249, certiorari denied 474 U.S. 1037, 106 S.Ct. 604, 88 L.Ed.2d 583 (1985).

C.A.6,

C.A.6, 2015. Cit. and quot. in sup., adopted in case cit. in sup.; com. (e) cit. in sup. Manufacturer that contracted with lighting-products designer to make designer's products brought a breach-of-contract action against designer; designer filed a tortious-interference counterclaim, among other things, alleging that plaintiff used defendant's molds to manufacture identical productsand urged defendant's customers to buy the products from plaintiff. The district court entered judgment for defendant. This courtaffirmed in part, holding that plaintiff was liable for tortious interference. Citing Restatement Second of Torts § 768, the courtexplained that the district court did not err in finding that plaintiff's interference with defendant's customer relationships didnot involve a proper means of competition, because plaintiff used its confidential relationship with defendant to make productsand packaging nearly identical to defendant's and sold those products to defendant's customers. Kehoe Component Sales Inc.v. Best Lighting Products, Inc., 796 F.3d 576, 594.

C.A.6

C.A.6, 2011. Cit. and quot. in disc. and sup., adopted in case cit. in sup., cit. in ftn., subsec. (1)(d) quot. in disc., com. (b) quot.in sup. Successful bidder at auction for acquisition of real estate investment trust sued rival bidder, alleging that defendant, byviolating a standstill agreement and submitting a late bid, improperly interfered with its valid expectancy that trust's unitholderswould approve its $15.00 per unit offer, causing it to have to raise its offer to $16.50 per unit. The district court entered judgmenton a jury verdict for plaintiff on its claim for tortious interference with prospective advantage. This court affirmed, holding,inter alia, that the district court correctly determined that Kentucky law would look to Restatement Second of Torts § 768 todetermine improper interference in cases between competitors, and did not err by instructing the jury on certain factors listedin § 767 to explicate § 768. Ventas, Inc. v. HCP, Inc., 647 F.3d 291, 302, 306-312.

C.A.6, 1994. Subsec. (2) quot. in case quot. in disc. (Erron. cit. as com. on § 768.) Division of a consulting company based inIndia sued an American competitor, alleging that competitor had tortiously interfered with consulting company's employmentcontracts by contacting employees, hiring them away before their contracts expired, and using their contacts with consultingcompany's clients to take away business. Reversing in part the district court's grant of summary judgment for competitor andremanding, this court held, inter alia, that a fact issue existed, under Michigan law, as to whether competitor had acted properly.Tata Consultancy Serv. v. Systems Intern., 31 F.3d 416, 424-425.

C.A.6, 1989. Subsec. (1) quot. in sup. An insurance agent who had delivered life insurance policies to clients for their inspectionsued a competitor for wrongful inducement of a breach of the insurance contract, after the clients opted to purchase thecompetitor's life insurance over the plaintiff's. The district court found that no breach of contract had occurred and enteredsummary judgment for the defendant, denying the plaintiff's motion to amend his complaint by adding a claim for tortiousinterference with prospective contractual relations or prospective economic advantage. Affirming, this court stated that theinsurance policies were not intended to benefit the plaintiff, nor was he a party to the policies; therefore, the defendant owedno duty to the plaintiff, who thus had no standing to sue. The court added that the defendant could properly interfere with theplaintiff's prospective contractual relations with the clients, since the interference was for the purpose of acquiring the businessfor himself. Warde v. Kaiser, 887 F.2d 97, 102.

C.A.7











C.A.7, 2010. Cit. in ftn., com. (e) cit. in ftn. Russian-language satellite-television-programming provider sued cable-television-company owner under the Illinois Cable Piracy Act and other Illinois laws, alleging that defendant pirated Russian-languageprogramming to enable him to compete unfairly against plaintiff's legitimate business. The district court granted plaintiff'smotion for a preliminary injunction, enjoining defendant from distributing Russian-language satellite-television programming to20 specific apartment houses where he had been operating illegally. Affirming, this court held, inter alia, that, because defendantdid not raise his copyright-preemption defense until after he had appealed the preliminary injunction, the district court rightlyrefused to consider modifying or vacating the injunction while it was pending on appeal. The court noted that, even if defendanthad raised his copyright preemption defense before the district court issued its injunction, and the district court found that thedefense applied, the common law of tortious interference with business relationships could also offer plaintiff relief under thecircumstances of this case. Russian Media Group, LLC v. Cable America, Inc., 598 F.3d 302, 308.

C.A.7, 1999. Cit. in headnote and disc., com. (i) cit. in headnote and disc. Sports agency sued competitor for tortious interferencewith a business relationship and violations of Illinois law, alleging that defendant's promise to a professional baseball player thatit would get him $2 to $4 million in endorsements was fraudulent and had induced him to terminate his contract with plaintiff.District court granted defendant summary judgment. This court affirmed, holding, inter alia, that the alleged promise couldnot be the basis for a finding of fraud, because it was not part of a scheme to defraud evidenced by more than the allegedlyfraudulent promise itself. Speakers of Sport, Inc. v. ProServ, Inc., 178 F.3d 862, 865.

C.A.7, 1999. Subsec. (b) quot. in disc. A machine parts manufacturer sued a buyer for breach of contract and conspiracy withthe manufacturer's competitor to intentionally interfere with the manufacturer's contract to supply the buyer with all of itsrequired machined parts. District court granted buyer summary judgment. This court affirmed in part, holding, inter alia, thatplaintiff failed to show that the competitor engaged in the kind of unfair and unreasonable conduct required to support a claimfor conspiracy to tortiously interfere with plaintiff's contract. Zemco Manufacturing, Incorporated v. Navistar InternationalTransportation Corporation, 186 F.3d 815, 822.

C.A.7, 1993. Subsec. (2) and com. (i) quot. in disc. Seller of electronic components sued buyer for, inter alia, tortious interferencewith its at-will employment contract with its national sales manager by hiring him away. Affirming in part the district court'sentry of judgment on a jury verdict for plaintiff, this court rejected defendant's argument that because manager had an at-will employment contract cancelable at any time by either party, defendant was free to lure him away. The court noted thatmanager's use of plaintiff's computer to generate figures for defendant and manager's failure to inform plaintiff that defendantwas withdrawing its parts mold and orders were sufficient to indicate that defendant had improperly induced manager to breachhis duty to plaintiff in tortious interference with the employment contract. Europlast, Ltd. v. Oak Switch Systems, Inc., 10 F.3d1266, 1273, 1274.

C.A.7,1992. Cit. and quot. in disc. A fan manufacturer decided not to sell its new line of ceiling fans to a particular fanretailer but opted to sell the new line to another retailer. The excluded retailer sued both the manufacturer and other retailerasserting various claims, including a claim against the other retailer for intentional interference with the prospective economicrelationship between the plaintiff and the manufacturer. The federal district court of Illinois entered summary judgment againstthe plaintiff. Affirming, this court held, inter alia, that the plaintiff's allegations that the retailer intentionally interfered with itsbusiness expectancy with the manufacturer, even if true, fell within the competitor's privilege exception to the tort of intentionalinterference with prospective economic advantage. The court stated that the defendant retailer was acting to advance its interestsat the expense of its competitor by securing the manufacturer's contract and denying it to the plaintiff. It noted that Illinois courtshave adopted the formulation of the Restatement in defining unlawful competition. A-Abart Elec. Supply, Inc. v. Emerson Elec.Co., 956 F.2d 1399, 1405, certiorari denied 506 U.S. 867, 113 S.Ct. 194, 121 L.Ed.2d 137 (1992).

C.A.7, 1986. Quot. in sup. When a prospective buyer of a basketball franchise was unable to complete his purchase because alocal arena owner, who belonged to a competing group, refused to lease him the only suitable basketball arena in the area, thedisappointed buyer sued the competing group. The trial court found that the arena owner had committed an antitrust violationin refusing to deal with the plaintiff. Affirming in part, this court held that the defendants' concerted refusal to lease the arena












amounted to unlawful competition in the area of interference with business relationships. Fishman v. Estate of Wirtz, 807 F.2d520, 546-547.

C.A.7, 1986. Cit. in disc. A minority shareholder in a close corporation sued the majority bloc of shareholders and others forbreach of a stockholder agreement that required the majority to offer their stock to the plaintiff and other minority shareholdersat a set price before offering it for sale to anyone else. When the corporation began to negotiate with the bank that would takeover the corporation, the corporation asked all minority shareholders to waive any rights they might have under the previousagreement. The plaintiff refused and sued. The trial court granted summary judgment to the defendants. This court affirmed,stating that the stockholders' contract did not empower any stockholder to block an attempt by the corporation to sell its assetsor to insist that the deal be configured so as to trigger the stockholder's right of first refusal. Moreover, competition is a defenseto a charge of interfering with prospective contractual relations, provided that it is fair competition, consistent with antitrustlaws and other principles. Frandsen v. Jensen-Sundquist Agency, Inc., 802 F.2d 941, 947.

C.A.7, 1986. Quot. in ftn. (Erron. cit. as Torts.) A travel agency lost its principal customer, a vehicle delivery service, to acompeting travel agency. The travel agency that lost the customer sued its competitor and the vehicle delivery service, allegingthat, in addition to having violated state and federal antitrust laws, the competing enterprise had intentionally interfered with theplaintiff's contracts and prospective business relations. The trial court granted the defendants' motion for summary judgment.Affirming, this court held that the plaintiff's competitor was not liable for tortious interference with the plaintiff's arrangementwith the vehicle delivery service because it had done nothing illegal. The court rejected the plaintiff's argument that mereintimidation on the part of the competitor could support its claim. The court reasoned that, under Indiana law, only illegalconduct, not alleged unethical business conduct, could support a claim for interference with prospective business relations.Great Escape, Inc. v. Union City Body Co., Inc., 791 F.2d 532, 542-545.

C.A.7, 1985. Cit. in sup., com. (i) cit. in sup. An insurance company sued a former agent after the agent allegedly caused thetermination of policies that he had sold or serviced while still employed with the company. The insurance company alleged thatinducing or causing the holders of policies to terminate was a tortious interference with contractual relations. This court affirmedthe district court's dismissal of the complaint, holding that the policies were at-will contracts and that the defendant's inducementof a cancellation of an at-will contract is merely interference with a prospective economic advantage, not interference withcontractual relations. Prudential Ins. Co. of America v. Sipula, 776 F.2d 157, 162.

C.A.8,

C.A.8, 2020. Cit. in case cit. in diss. op.; coms. (a) and (h) quot. in diss. op.; com. (i) quot. in sup., cit. in diss. op. Truckingcompany filed a claim for intentional interference with contract against competitor, alleging that defendant wrongfully recruitedand hired multiple long-haul truck drivers who were already under contracts with plaintiff. The district court granted summaryjudgment for defendant. This court reversed in part and remanded, holding that plaintiff raised a genuine issue of material factwith regard to causation under Restatement Second of Torts § 766 by presenting evidence from which a reasonable juror couldconclude that defendant intentionally induced the drivers to breach their contracts with plaintiff by offering them superior terms.The dissent cited § 768 in arguing that defendant's actions constituted legitimate competition and that plaintiff did not meetits burden to prove that defendant had an improper motive. CRST Expedited, Inc. v. TransAm Trucking, Inc., 960 F.3d 499,505, 511, 512.

C.A.8, 2013. Cit. in sup., cit. and quot. in cases quot. in sup., com. (b) cit. in sup. Retired football players who formerlyplayed in a professional-sports league filed a class action against association that represented players in the league, association'sexecutive director, and certain active players, alleging that defendants improperly interfered with their prospective economicadvantage by locking them out of mediation negotiations with the league and then negotiating retired-player benefits withoutauthorization, resulting in fewer benefits for plaintiffs than they could have obtained if allowed to negotiate with the leaguefor themselves. The district court granted defendants' motion to dismiss. Affirming, this court held, among other things, thatplaintiffs' allegations that active players engaged in collective bargaining to further their own economic interests, at the expense











of plaintiffs' economic interests, did not state a claim for tortious interference under Minnesota's competitor's privilege. Thecourt pointed out that, in any event, the agreement negotiated by defendants included a fund for players who retired before 1993,which would receive half of its funding from a salary cap on active players, an obvious financial detriment to active players.Eller v. National Football League Players Ass'n, 731 F.3d 752, 759, 760.

C.A.8

C.A.8, 2010. Cit. in sup. Manufacturer that leased paper-towel dispensers to distributors, which in turn subleased the dispensersto a church and school district, sued competing distributor, after defendant sold another brand of paper towels to the churchand school district for use in plaintiff's dispensers. The district court granted summary judgment for defendant on plaintiff'sclaim for tortious interference with contractual relations. Affirming, this court held, among other things, that, while defendantknew with 99% certainty that its customers were putting the other brand of paper towels in plaintiff's dispensers, there was noevidence that defendant knew that they were doing so in violation of a signed sublease. The court pointed out that the agreementbetween plaintiff's distributor and the church and school district was an at-will contract because it was for an indefinite term, andthat, under Arkansas law, there was a strong presumption that interference with an at-will contract was not improper. Georgia-Pacific Consumer Products LP v. Myers Supply, Inc., 621 F.3d 771, 779.

C.A.8, 2002. Coms. (h) and (i) cit. in sup. After company terminated its contract with sales representative and hired his subagentin his place, representative sued company and its officers for breach of contract and tortious interference with contract. Juryawarded plaintiff compensatory damages, but trial court granted company's motion for judgment as a matter of law on tortious-interference claim. This court affirmed, holding, inter alia, that although company's inducing subagent's breach of contractwas improper, plaintiff could not recover anticipatory profits, since he had no claim to commissions from sales of company'sproducts that occurred after company terminated its contract with him. Plaintiff's losses on these sales were a result of companyexercising its right to terminate its contract with him at will. Mathis v. Liu, 276 F.3d 1027, 1030.

C.A.8, 1998. Cit. in headnote and disc. A shipping company that received packages from mail order and retail catalog merchantsand delivered them in bulk to postal service bulk mail distribution centers sued a competitor for predatory pricing under thefederal antitrust laws and the Iowa law of interference with prospective advantage. The Iowa federal district court granted thecompetitor summary judgment. This court affirmed, holding that defendant's passing remark to plaintiff that it could “takeyou out” was not the kind of competitive threat that would support a prima facie case of tortious interference. National ParcelServices v. J.B. Hunt Logistics, 150 F.3d 970, 970, 971.

C.A.8, 1996. Subsec. (2) cit. in ftn. Employee of Indian subsidiary that rebelled against and broke away from its Americanparent company sued parent for, inter alia, tortious interference with contract, alleging that he was forced to leave his position,as well as India, after parent provided certain tax information to Indian authorities. The district court granted parent's motionfor summary judgment. Affirming, this court held that parent, which had a legal right and duty to furnish the Indian taxingauthorities with information relating to employee's salary, did not improperly interfere with the performance of employees'semployment contract, and that, even if it did, employee, who had previously indicated that he left India for health reasons, failedto show that parent's conduct caused him to lose his job. The fact that parent had recently formed a new company to competedirectly with subsidiary did not prove improper interference. Sawheny v. Pioneer Hi-Bred Intern., Inc., 93 F.3d 1401, 1409.

C.A.8, 1996. Cit. in disc. Farm supply store sued its former manager for breach of the duty of loyalty and misappropriation oftrade secrets, and sued manager's new employer for tortious interference with prospective contractual relations after managerleft store to work elsewhere. Manager counterclaimed for his annual bonus. Following a bench trial, the district court enteredjudgment for store in the amount of $75,000 on its claim for breach of the duty of loyalty, dismissed the claims against newemployer, and entered judgment for manager on his counterclaim. Affirming in part, reversing in part, and remanding, this courtheld that manager breached his duty of loyalty by soliciting colleagues and customers before he left store's employ; that theinformation store sought to protect was readily ascertainable and, thus, not a trade secret; and that new employer's decision to










open a rival business constituted valid competition, not tortious interference; however, manager was not entitled to an incentivebonus for the year he breached his fiduciary duty to store. Vigoro Indus., Inc. v. Crisp, 82 F.3d 785, 790.

C.A.8, 1992. Quot. and cit. in sup., subsec. (1)(b) cit. in sup., subsec. (1)(c) cit. in ftn. in sup. Reseller of office equipmentsued equipment manufacturer for tortious interference with prospective contractual relations, inter alia, after manufacturer toldreseller's customer that the used machines were in poor condition. After jury returned verdict for reseller, the district courtdenied manufacturer's motions for new trial and judgment n.o.v. This court reversed and remanded with direction to enterjudgment for defendant, holding that reseller failed to show that manufacturer had used wrongful means, thus acting outsidescope of competitor's privilege, since there was no evidence that any misrepresentations made by manufacturer were relied onby reseller's customer. Amerinet, Inc. v. Xerox Corp., 972 F.2d 1483, 1505-1507, cert. denied 506 U.S. 1080, 113 S.Ct. 1048,122 L.Ed.2d 356 (1993).

C.A.8, 1989. Quot. in case cit. in disc., com. (f) quot. in disc. A distributor of agricultural equipment and machinery, whichwent out of business after its distributorship was terminated by a manufacturer of farm equipment, the sales of whose productsconstituted approximately 90% of the plaintiff's business, sued the manufacturer for conversion and intentional interferencewith prospective contractual relations, inter alia. The district court entered judgment on a jury verdict for the plaintiff, andthis court reversed and remanded. The court, however, sustained the plaintiff's claim for tortious interference and allowed theplaintiff to file written election for a new trial on that claim, holding that the defendant's attempted monopolization of the hoistmarket by lowering its price to induce the plaintiff's customers to buy from the defendant was improper interference. H.J., Inc.v. International Tel. & Tel. Corp., 867 F.2d 1531, 1548, rehearing denied 876 F.2d 59 (8th Cir.1989).

C.A.8, 1987. Cit. and quot. in sup., cit. in disc., com. (e) cit. in sup. A wholesale distributor bought batteries for resale froma manufacturer, which also had a distribution network. When the manufacturer discontinued selling to the wholesaler, thewholesaler sued it for damages. The manufacturer counterclaimed and was awarded damages for tortious interference, basedon the wholesaler's hiring of several of the manufacturer's employees. Reversing, this court held that valid competition betweenbusiness rivals was a justification for interference with at-will employees as long as wrongful means of inducement were notused. The court reasoned that the employees' failure to give notice before leaving the manufacturer did not rise to the level ofsuch wrongfulness. Henry v. Chloride, Inc., 809 F.2d 1334, 1351, 1352.

C.A.8, 1985. Cit. in sup. The plaintiff agreed to supply oil to a petroleum products distributor, who then resold it to usersthrough retail outlets. The agreement included a distributor development provision whereby the supplier promised to promotethe sales and profits of the distributor and to offer special prices so the distributor could make competitive bids to prospectivecustomers. The supplier sued the distributor to recover money due for petroleum products it had delivered, and the distributorcounterclaimed, alleging price discrimination, attempt to monopolize, tortious interference with a business relationship, breachof contract, and breach of an implied obligation of good faith and fair dealing. The trial court found for the supplier. The courtof appeals affirmed in part, holding that the plaintiff's act of bidding against the defendant to obtain the business of one of thedistributor's long-time customers did not constitute a wrongful means of competition. However, the court reversed in part andremanded for a determination of damages on the contract issue, holding that the plaintiff breached an implied duty of good faithand fair dealing. Conoco, Inc. v. Inman Oil Co., Inc., 774 F.2d 895, 907, appeal after remand 815 F.2d 514 (1987).

C.A.8, 1981. Cit. and quot. in part in disc. The plaintiff, a Texas corporation, sold and installed an artificial athletic turfsurface called “SuperTurf.” The defendant, a Missouri corporation, was the first to manufacture and sell synthetic turf knownas “AstroTurf.” The plaintiff sued, alleging antitrust violations and a pendent state law claim for tortious interference withbusiness relations. At the end of the trial the court forced the plaintiff to choose between the federal and state claims; only thefederal claims were submitted to the jury, which returned a verdict against the plaintiff. This court found that the lower courthad erred by not submitting a special verdict form and instructing the jury on the state law claims. The plaintiff had arguedthat Missouri law applied to the tortious interference claims, because the conduct causing the injury occurred in Missouri atthe defendant's corporate headquarters and because the defendant resided in Missouri. The court did not discuss this point, butaccepted the plaintiff's contention that Missouri law applied for purposes of review. The court stated that Missouri afforded













protection against unjustified interference with the reasonable expectancies of commercial relations, even where an existingcontract was lacking. The court stated that a reasonable jury could have found that the plaintiff had established a prima faciecase of tortious interference with business expectancies concerning one stadium installation. The court also stated that it couldnot hold, as a matter of law, that the defendant's alleged tortious interference was justified by its competitive aims. The courttherefore reversed and remanded for a new trial limited to evidence relating to this transaction. SuperTurf, Inc. v. MonsantoCo., 660 F.2d 1275, 1286.

C.A.9

C.A.9, 1993. Quot. in case cit. in sup. A bowling center developer sued a bowling equipment manufacturer that also ownedand operated competing bowling centers, asserting antitrust and state tort law claims. This court, reversing a damage award tothe plaintiff and remanding with directions, held, inter alia, that, under California law, the privilege of competition protectedthe defendant from plaintiff's claim that defendant had tortiously interfered with plaintiff's prospective economic advantage byprevailing on a construction company not to deal with plaintiff, because plaintiff's contractual relations with the constructioncompany were merely contemplated or potential and the defendant was, therefore, free to refuse to deal with the constructioncompany unless it ceased dealing with plaintiff. Los Angeles Land Co. v. Brunswick Corp., 6 F.3d 1422, 1431, cert. denied 510U.S. 1197, 114 S.Ct. 1307, 127 L.Ed.2d 658 (1994).

C.A.9, 1992. Quot. in case quot. in sup. Large airline seeking to expand business into new territory negotiated feederarrangement with small airline but no contract ensued. Large airline later increased business in a-reas discussed in negotiationsand served only by smaller airline. Small airline then sued larger airline for tortious interference with its prospective businessadvantage claiming that larger airline's expansion was anticompetitive. This court affirmed the district court's grant of summaryjudgment for defendant, holding that small airline did not prove that defendant's sole purpose in expanding its business wasanticompetitive or that defendant's actions constituted anticompetitive conduct. Pacific Exp., Inc. v. United Airlines, Inc., 959F.2d 814, 819, cert. denied 506 U.S. 1034, 113 S.Ct. 814, 121 L.Ed.2d 686 (1992).

C.A.9, 1984. Subsec. (2) cit. in sup. and cit. in disc. After plans for a corporate merger fell through, one corporation sued anotherfor interference with the merger contract. The trial court granted summary judgment to the defendant. This court reversedand remanded. The court found an unresolved issue of material fact as to the existence of a binding merger contract betweenthe plaintiff and its expected merger partner, which precluded summary judgment. The court also reversed on the question ofjustifiable contract interference, ruling that, if a binding merger contract existed, the defendant's actions could not be justifiedas mere competition. Jewel Companies v. Pay Less Drug Stores Northwest, 741 F.2d 1555, 1564, 1568.

C.A.10

C.A.10, 2008. Cit. but dist., com. (e) quot. in sup. Owner of auto-glass repair shop, who held patents for processes torepair windshield cracks, brought claim for tortious interference with business relations, inter alia, against automobile insurerand its claims processor, alleging that defendants damaged his business through their policy of recommending against, andundercompensating, repairs of windshield cracks longer than six inches. The district court granted summary judgment fordefendants. Affirming, this court held, inter alia, that plaintiff failed to provide sufficient evidence of any wrongful act bydefendants under Colorado law, for example, that the lack of a reasonable reimbursement rate for a long crack repair wasanything other than a legitimate business practice intended to achieve an advantage over competitors. Campfield v. State FarmMut. Auto. Ins. Co., 532 F.3d 1111, 1123.

C.A.10, 1999. Com. (e) quot. in case quot. in disc. School district sued bond rating service for, inter alia, intentional interferencewith contract and intentional interference with prospective business relations, alleging that defendant's evaluation of refundingbonds issued by plaintiff was materially false and was published to retaliate against plaintiff for using other credit-ratingagencies. Affirming the district court's dismissal of the complaint, this court held, in part, that where plaintiff's tortious














interference claims were based on defendant's lawful conduct or speech, such lawful activity was insufficient to establish therequired element of improper conduct. Jefferson Sch. Dist. R-1 v. Moody's Investor's, 175 F.3d 848, 858.

C.A.10, 1996. Erron. cit. at 833 as § 678. Cit. in headnotes, cit. in disc., quot. in ftn. in sup., cit. in case quot. in sup., subsec. (1)(b) quot. in sup. and cit. in case quot. in disc., com. (b) quot. in disc., com. (h) cit. in disc., com. (e) quot. and cit. in sup., quot.in part in ftn. in sup. Unsuccessful bidder on contract to upgrade store's computer system sued successful bidder for, inter alia,tortious interference with prospective contractual relations. The district court granted defendant's motion for summary judgment.Affirming, this court held that Kansas would recognize the competition privilege as a defense to the tort of interference withprospective contract, and that a party attempting to defeat the privilege was required to show that its opponent employed suchwrongful means as would constitute independently actionable conduct, which plaintiff failed to do. DP-Tek v. AT & T GlobalInformation Solutions Co., 100 F.3d 828, 828-836.

C.A.10, 1995. Subsec. (1) cit. in headnote, quot. in sup., and cit. in disc.; subsecs. (1)(a) and (1)(d) cit. in sup.; com. (c) quot.insup. Provider of industrial hygiene consulting services brought an action for tortious interference with prospective economicadvantage, inter alia, against an operator of a nuclear weapons production facility under contract with the federal governmentfor hiring away plaintiff's industrial hygienists. Affirming in part the district court's grant of summary judgment for defendant,this court held, inter alia, that, since the parties were competitors as buyers in the market for industrial hygienists, defendant'shiring of plaintiff's personnel fit under the competitor's privilege; as a result, defendant's conduct was not “improper” for thepurpose of a claim for intentional interference with prospective economic advantage, and plaintiff's claim failed. Occusafe, Inc.v. EG&G Rocky Flats, Inc., 54 F.3d 618, 619, 622.

C.A.10, 1986. Subsec. (1) quot. in sup., coms. (e) and (g) quot. in sup. A partnership executed a conditional agreement toacquire the assets of an investment association, but a competitor corporation outmaneuvered the partnership and purchased mostof the stock of the association. When the partnership sued the competitor for tortious interference with prospective businessand economic advantage, the trial court granted summary judgment to the defendant. Affirming, this court held that it was notimproper for one to intentionally cause a third person not to enter into a prospective contractual relation with a competitor ifthe contract concerned a matter involved in competition between the parties, wrongful means were not employed, no unlawfulrestraint of trade was involved, and the purpose, at least in part, was to advance one's own competitive interest. R-G Denver,Ltd. v. First City Holdings of Colorado, Inc., 789 F.2d 1469, 1476.

C.A.11

C.A.11, 2002. Quot. in case quot. in disc. Competitor sued liquid-propane distributor for, in part, tortious interference withcontractual or business relationships, contending that defendant's reduction of the residential price of its propane gas unlawfullyinduced potential customers to buy from defendant rather than plaintiff. On remand, the district court granted summary judgmentfor defendant. Affirming, this court held, inter alia, that plaintiff failed to set forth sufficient evidence disputing defendant'sevidence that its price reduction was legitimate business competition. Bailey v. Allgas, Inc., 284 F.3d 1237, 1257.

C.A.11, 2001. Subsec. (1) quot. in disc. Distributor of aviation wire sued wire manufacturer for tortious interference with anadvantageous business relationship, alleging that manufacturer broke its promise that it would not sell directly to distributor'scustomers. Jury returned verdict for distributor, but Florida federal district court entered judgment as a matter of law formanufacturer. This court affirmed, holding, inter alia, that manufacturer's actions were protected by the privilege of competition.International Sales & Service, Inc. v. Austral Insulated Products, Inc., 262 F.3d 1152, 1159.

C.A.D.C.

C.A.D.C.2015. Quot. in sup. (erron. cite as § 766B); com. (h) quot. in sup. (erron. cite as § 766B com. (h)). Developer whosuccessfully obtained a bid for a preliminary contract with the Washington Metropolitan Area Transit Authority (WMATA)filed, inter alia, a claim for tortious interference with prospective business advantage and tortious interference with its contract












with WMATA against a rival bidder, alleging that defendant worked with one of WMATA's board members to derail plaintiff'snegotiations for a final contract. The district court dismissed plaintiff's claim. This court reversed, holding that plaintiffadequately stated its claim for tortious interference under a theory of inducement. Citing Restatement Second of Torts § 768,the court rejected defendant's argument that it was merely pursuing its financial interest, and explained that competition couldonly be used as a defense for inducement not to enter into prospective contractual relations or to continue a contract that wasterminable at will, and plaintiff alleged that its contract with WMATA was not terminable at will. Banneker Ventures, LLC v.Graham, 798 F.3d 1119, 1137.

C.A.Fed.

C.A.Fed.1996. Cit. in headnote, quot. in ftn. The owner of a reissue patent for a method for coating a substrate with multiplelayers of materials to form an optical component, which was used for navigational control of the aircraft, brought suit alleginginfringement and state law claims against a competitor. District court determined as a matter of law that competitor did notinfringe the patents, and it granted competitor's judgment as a matter of law on plaintiff's claims for intentional interference withcontractual relations and intentional interference with prospective economic advantage. This court affirmed in part and reversedin part, holding, inter alia, that there was sufficient evidence that defendant disrupted plaintiff's prospects for successful businesswith two aircraft companies and consequently was the proximate cause of plaintiff's damages. Because it used wrongful meansto gain a competitive advantage over plaintiff, defendant could not invoke the privilege of free competition. Litton Systems,Inc. v. Honeywell, Inc., 87 F.3d 1559, 1563, 1575.

C.A.Fed.1988. Subsec. (1) quot. in sup. A manufacturer of computer terminals sought an injunction against a competitor thathad reduced its prices to a major customer in response to the plaintiff manufacturer's lower list prices. The district court deniedthe motion for preliminary injunction on the ground that there was little likelihood of success on the tortious interference,antitrust, and unfair competition claims. Affirming, this court ruled that the district court did not abuse its discretion in denyingthe motion because the customer had not accepted the plaintiff's price quotation nor revealed that quotation to the defendant;therefore mere competition rather than tortious interference had occurred. Xeta, Inc. v. Atex, Inc., 852 F.2d 1280, 1284.

N.D.Ala.

N.D.Ala.2010. Cit. in case cit. in disc. Wholesale distributor of petroleum products sued competitor, among others, allegingthat defendant intentionally interfered with its contract to supply gasoline to a service station. Granting summary judgmentfor defendant, this court held that plaintiff failed to raise a fact issue as to whether defendant's interference with the contractwas intentional; the record suggested to the contrary that defendant did not know that selling gasoline to the service stationwas substantially certain to interfere with plaintiff's contract with that station. Moore Oil Co., Inc. v. D & D Oil Co., Inc., 747F.Supp.2d 1280, 1291.

D.Ariz.

D.Ariz.2016. Subsec. (1)(d) cit. in case quot. in sup.; com. (b) cit. in sup. Former employee brought a claim for tortiousinterference with contract against former employer, alleging that defendant knowingly and intentional interfered withhis business relationship with his previous employer by fraudulently assuring him of various benefits, promotions, andenhancements with the improper motive of causing him to abandon his relationship with his previous employer in favor ofworking for defendant. This court granted summary judgment for defendant, holding that there was no evidence that defendantwas acting in any way other than to hire plaintiff on terms agreeable to both parties. The court noted that, under RestatementSecond of Torts § 768, a competitor did not act improperly if its purpose at least in part was to advance its own economicinterests. Day v. LSI Corporation, 174 F.Supp.3d 1130, 1160.











D.Ariz.1973. Cit. and quot. com. (j) in sup. (T.D. No. 14, 1969). Employer brought an action against a competitor and formeremployees, who had resigned their positions with employer and accepted employment with competitor, for inducement to breachcontract. Plaintiff maintained that the defendant competitor had secretly negotiated with plaintiff's former employees in orderto lure them away from his company and engage them in the competitor's operation. The court held: Because the defendantemployees were free to leave the plaintiff's employment at any time, the defendant competitor was free to employ them. Acompetitor is privileged to hire away an employee whose employment is terminable at will. Since the employees may havebenefited by the move into the competitor's company and had no obligation to stay with the plaintiff's company, the competitorwas not guilty of inducement to breach a contract. Motorola, Inc. v. Fairchild Camera and Instrument Corp., 366 F.Supp. 1173,1181.

E.D.Ark.

E.D.Ark.1994. Quot. in sup. Farm supply business sued former manager, among others, for intentionally interfering with itsexpectation of continuing longstanding customer relationships and long-term relationships with its at-will employees, amongother claims, after manager left plaintiff, bringing with him former co-workers to start business financed by new employerand plaintiff's customers followed. The court entered judgment for plaintiff, holding, inter alia, that defendant's only improperinterference resulting in lost profits was due to delay in employees' departure that would have occurred had defendant waiteduntil he resigned to recruit co-workers; defendant's resignation notice stating that all his employees were going with him providedevidence that he acted improperly in securing their commitment before he resigned. Vigoro Indus. v. Cleveland Chemical ofArkansas, 866 F.Supp. 1150, 1166-1167, affirmed in part, reversed in part 82 F.3d 785 (8th Cir.1996). See above case.

D.Colo.

D.Colo.2004. Cit. in case cit. in disc. §§ 766-768. Former management-level employee sued former employer and a parcelservice for defamation and intentional interference with a contractual relationship. This court granted parcel service summaryjudgment, holding, inter alia, that plaintiff's intentional-interference claim failed, because there was insufficient evidence thatparcel service knew or should have known of either plaintiff's employment contract or plaintiff's severance agreement withformer employer, and that parcel service intended to cause breach of contract. The court rejected plaintiff's argument that parcelservice should have known of the existence of contract between plaintiff and former employer because plaintiff's signature wason contract signed between parcel service and former employer. Graziani v. Epic Data Corp., 305 F.Supp.2d 1192, 1196.

D.Colo.2004. Cit. in sup., cit. in case cit. in sup., com. (e) cit. in case cit. in sup.; cit. in case cit. in sup. §§ 766B-768. Concertpromoter and its affiliates sued competitor for antitrust violations and tortious conduct, alleging that defendant interfered withplaintiffs' employment contract by hiring employee away from plaintiffs, interfered with plaintiffs' band contract, and tortiouslyinterfered with plaintiff's prospective business relations with other bands. This court granted defendant summary judgmenton tortious-interference-with-contract claims, holding that defendant's luring away of employee was not improper. The court,however, denied defendant summary judgment on plaintiff's claim for tortious interference with prospective relations withanother band, since defendant's insistence that band use defendant to promote a concert to avoid loss of radio air play on itsnetwork constituted intentional improper conduct. Nobody in Particular Presents, Inc. v. Clear Channel Communications, Inc.,311 F.Supp.2d 1048, 1115-1117, 1119.

D.Colo.2003. Subsec. (1) cit. in sup., com. (e) quot. in sup., com. (a) cit. in ftn. Owner of patent for device used inrefrigeration doors sued door manufacturer for breach of noncompetition agreement, trade-secret misappropriation, and tortiousinterference with business opportunity, alleging that manufacturer began marketing and selling identical device. Denying inpart manufacturer's motion to dismiss, this court held, inter alia, that patent owner's assertion that manufacturer misappropriatedtrade secrets adequately alleged “wrongful means” for purposes of satisfying element of tortious-interference claim. EnergexEnterprises, Inc. v. Anthony Doors, Inc., 250 F.Supp.2d 1278, 1285, 1286.














D.Colo.2000. Quot. in sup., com. (e) quot. in sup. Product seller sued former distributor, now its competitor, for patentinfringement, deceptive trade practices, and breach of noncompetition contract. Competitor and competitor's companycounterclaimed for interference with business and contractual relations and deceptive trade practices. This court granteddefendants summary judgment as to the noncompetition agreement and granted seller summary judgment as to defendants'counterclaims, holding, inter alia, that no reasonable juror could find for defendants on their counterclaim for interference withbusiness and contractual relations. Defendants failed to show that a sign displayed by seller at a trade show, indicating his beliefthat his patent was being infringed, was intentional or improper, or that it caused a retail store not to enter into or continue aprospective relationship with defendants. Nutting v. RAM Southwest, Inc., 106 F.Supp.2d 1121, 1129.

D.Colo.1999. Cit. in disc. Financial planning entity, a Minnesota corporation, sued former employee, a resident of Colorado,for breach of contract, intentional interference with prospective business relations, and breach of fiduciary duty. Defendantcounterclaimed for breach of contract, intentional interference with contract, and abuse of process. On motions by the parties,the court held that the substantive law of Minnesota controlled, since Minnesota had the greater interest in the dispute, andapplication of its laws would not contravene Colorado public policy; that plaintiff was entitled to summary judgment on itsclaims for breach of contract and intentional interference with client contracts; that defendant committed a breach of fiduciaryduty by engaging in pretermination solicitations of customers; that defendant was unable to provide evidence of existingcontracts with which plaintiff was said to have interfered; and that, even if plaintiff had an incidental ulterior motive ininitiating process against defendant, defendant failed to establish plaintiff's improper use of the process. American Exp. FinancialAdvisors, Inc. v. Topel, 38 F.Supp.2d 1233, 1246.

D.Colo.1996. Cit. in headnote, subsec. (1) cit. in disc., subsec. (1)(b) cit. in disc., com. (e) quot. but dist. Manufacturer of makeupapplicators sued competitor and competitor's officers for, inter alia, conversion and tortious interference with prospectivebusiness relations. Defendants moved for summary judgment. Granting the motion in part and denying it in part, the court heldthat material factual questions existed as to whether defendants had committed the tort of conversion with respect to plaintiff'sdrawings and blueprints; that, to the extent plaintiff's conversion claim was based on defendants' alleged misappropriation oftrade secrets, it was preempted by Colorado's Uniform Trade Secrets Act; and that plaintiff could not prevail on its claim fortortious interference with prospective business relations because the competition privilege applied, and plaintiff was unableto show that defendants engaged in such wrongful means as would defeat the privilege. Powell Products, Inc. v. Marks, 948F.Supp. 1469, 1470, 1479.

D.Colo.1989. Cit. in case cit. in disc. An insurance agent sued an insurance company for tortious interference with contract, interalia, alleging that the defendant interfered with the plaintiff's independent agency contracts by inducing the plaintiff, throughmisrepresentations, to give up those contracts with other insurance carriers through whom the plaintiff sold insurance in order tosell insurance exclusively through the defendant, after which the defendant fired him. The court denied the defendant's motionfor summary judgment on this issue, noting that there was a genuine issue of fact as to whether the defendant intentionally andimproperly interfered with the performance of the contracts. Redies v. Nationwide Mut. Ins. Co., 711 F.Supp. 570, 574.

D.Conn.

D.Conn.1998. Cit. in headnote, quot. in ftn., com. (i) cit. in case cit. in disc. A corporation that sold products for the testingand analysis of veterinary blood samples sued a competitor, alleging unlawful exclusive dealing and tortious interference withbusiness relations and business expectancies, among other claims. This court granted defendant summary judgment, holding,inter alia, that plaintiff's tortious interference claim failed, because plaintiff could not prove interference that caused harmor actual loss, as plaintiff's sales continued to increase after defendant entered the market. Furthermore, many other avenuesexisted for plaintiff to sell its products directly, and there was no evidence that a contract existed between plaintiff and itsformer distributors. CDC Technologies, Inc. v. IDEXX Laboratories, Inc., 7 F.Supp.2d 119, 120, 132, affirmed 186 F.3d 74(2d Cir.1999).












D.Del.

D.Del.2010. Com. (i) cit. in disc.; cit. in case cit. in disc., cit. in case quot. in disc. §§ 768-773. In consolidated Chapter 11bankruptcy proceedings, state department of workforce development filed a proof of claim against debtor parent on behalfof former employees of debtor subsidiary, alleging that parent tortiously interfered with contracts between subsidiary andemployees by inducing subsidiary to change its severance policy. After a bench trial, this court held that department failed toprove that parent tortiously interfered with the contracts, but even if it had, financial privilege prevented a finding for department,because parent's 80% ownership of subsidiary gave it a financial interest in subsidiary's affairs; further, there was no evidencethat parent interfered using physical force, fraudulent misrepresentation, or any similar wrongful means. In re Joy Global, Inc.,739 F.Supp.2d 711, 733, 743.

D.D.C.

D.D.C.2012. Quot. in sup., cit. in case quot. in sup. Provider of information technology staffing services sued subcontractors forbreach of a noncompete agreement, after learning that defendants planned to place two employees directly with plaintiff's client,in positions for which it was actively submitting candidates for placement; defendants counterclaimed, alleging that plaintifftortiously interfered with their contractual or business relations by informing the client, among other things, that defendants hadviolated their agreement with plaintiff and had not lived up to their expectations or commitments. Granting summary judgmentfor plaintiff on defendants' counterclaim, this court held that defendants did not show that the communications complained ofwere knowingly false or untrue, or that they constituted anything more than competitive activity that could not form the basisof a tortious interference claim. Modis, Inc. v. InfoTran Systems, Inc., 893 F.Supp.2d 237, 241, 242.

D.D.C.1996. Cit. in headnote, cit. in sup. Management consulting company sued former employees for, inter alia, breach offiduciary duty, breach of a nonsolicitation agreement, and tortious interference with contract after employees left companyto start a competing business. Following a bench trial, the court entered judgment for employees on the fiduciary duty andtortious interference claims, holding that although employees were corporate directors who owed company an undivided dutyof loyalty, they did not breach this duty when they began to make arrangements to compete before formally terminating theiragency, as their pretermination actions did not harm company. Similarly, even though employees interfered with company'sclient contracts, such interference was not tortious where they did not act improperly or wrongfully. Finally, the court foundthat employees breached their nonsolicitation agreement by luring away from company both clients and executives, and thatcompany was entitled to approximately $350,000 in damages for lost profits and the cost of replacing those who left to jointheir colleagues. Mercer Management Consulting, Inc. v. Wilde, 920 F.Supp. 219, 222, 239.

D.D.C.1989. Com. (a) quot. in sup., com. (e) cit. in disc. A corporate vice president was discharged by his employer foralleged wrongful conversion of corporate property, tortious interference with contractual relations, and breach of a consultingagreement. The employer sued him for damages. The employee counterclaimed, alleging breach of contract, wrongful discharge,civil rights violations, and intentional interference with business and contractual relations. This court granted summary judgmentin favor of the employer and held, inter alia, that the defendant failed to conclusively prove his claim of intentional interferencewith prospective contractual relations by only showing facts that the employer had spoken to the employee's potential clientsabout the lawsuit and the employee's allegations of the employer's mismanagement. The court stated that, as a competitor, theemployer was entitled to communicate truthful information to its clients in its attempt to maintain its existing relationship withthe clients that the employee was soliciting. Inter. City Mgt. Ass'n Ret. Corp. v. Watkins, 726 F.Supp. 1, 6.

D.D.C.1979. Quot. in sup. Plaintiff architect brought an antitrust action against an association of professional architects andone of its members seeking treble damages from the association, which found him guilty of violating its ethical standardsand suspended his membership, and from the architect who filed charges of ethical misconduct with the association. Onplaintiff's motion for a partial summary judgment, this court held that the ethical standard prohibiting an architect from seekinga commission for which another architect has been selected, before a contract for the work has been entered into or where acontract entered into was terminable at will, was facially anticompetitive. The court rejected the argument made by defendants









that the ethical standard merely reflected the common law tort of interference with contractual relations and was, therefore,reasonable. In response to such argument, the court stated that the considerable weight of authority holds that there is a privilegeof competition which extends to inducing the termination of agreements terminable at will, which was the situation presentedhere. Accordingly, the court ruled that the suspended architect had been injured in his property or business and granted hismotion for partial summary judgment. Mardirosian v. American Institute of Architects, 474 F.Supp. 628, 651.

N.D.Ga.

N.D.Ga.1982. Cit. in ftn. The plaintiff, commodities broker/stockbroker, brought an action to recover damages from thedefendants, the owner of a commodities trading company and that company itself, for breach of contract, tortious interferencewith business relationships, defamation, and malicious prosecution. The defendants had entered into a business arrangementwith the plaintiff whereby the plaintiff and defendants agreed to divide the profits of an interstate commodities trading enterprise.The business arrangement, labelled by the plaintiff as a partnership and by the defendants as a corporation employing anindependent contractor, deteriorated when payments due the plaintiff were not timely made. The plaintiff was the target ofseveral schemes instigated by the defendants to destroy the plaintiff's business career. The plaintiff brought this action seekingdamages under multiple theories of recovery, and the defendants countered by insisting that since no partnership existed therewas no need to divide the profits of the enterprise. This court granted judgment for the plaintiff on all counts. After determiningthat it had proper jurisdiction over the defendants, this court found that a partnership arrangements existed between the plaintiffand defendants, and it ruled that a division of profits was necessary. The court further found that the defendants had tortiouslyinterfered with the business relationships of the plaintiff when they instigated poisonous telephone and letter campaigns againsthim. Hayes v. Irwin, 541 F.Supp. 397, 429, affirmed 729 F.2d 1466 (11th Cir.1984), rehearing denied 733 F.2d 908 (11thCir.1984), certiorari denied 469 U.S. 857, 105 S.Ct. 185, 83 L.Ed.2d 119 (1984).

D.Idaho

D.Idaho, 2010. Quot. in sup., adopted in case cit. in sup., cit. in ftn., com. (d) quot. in sup. Provider of temporary skilled workerssued power company with whom it contracted to recruit, interview, select, and hire applicants on an as-needed basis, allegingtortious interference with prospective economic advantage, inter alia. This court granted defendant's motion for summaryjudgment, holding that, while company interfered with plaintiff's economic expectancy when it decided to transition to anotherstaffing company and sent out a memo inducing plaintiff's at-will employees to become employees of the other company, suchinterference was not wrongful, because it was not accomplished by wrongful means and was not for an improper purpose; aslong as the requirements set forth in Restatement § 768 were met, inducing at-will employees to leave their current employerand transfer to a competitor was not an improper purpose. Quality Resource & Services, Inc. v. Idaho Power Co., 706 F.Supp.2d1088, 1102, 1103.

N.D.Ill.

N.D.Ill.2005. Cit. in case cit. in disc. Motorcycle-race promoter sued competitor for tortious interference with prospectiveeconomic advantage. Denying competitor's motion for judgment as a matter of law, the court held that it was for the juryto decide whether competitor's purpose in its actions directed at parties other than a third party with whom promoter had abusiness expectancy was to interfere with the prospective promoter-third-party relationship. Jam Sports and Entertainment,LLC v. Paradama Productions, Inc., 360 F.Supp.2d 905, 907.

N.D.Ill.2003. Com. (e) quot. in sup. After supplier of roll-your-own cigarette papers sued competitor for, in part, unfaircompetition, competitor counterclaimed for, inter alia, tortious interference with its business relationships and economicadvantage, alleging that supplier's rebate and incentive programs caused various wholesalers, distributors, and retailers to stopor refrain from doing business with it. Granting supplier's motion for summary judgment on the counterclaim, the court held that













there was no evidence that supplier's conduct was improper in the sense that supplier used wrongful means or was motivatedby malice. Republic Tobacco, L.P. v. North Atlantic Trading Co., Inc., 254 F.Supp.2d 1007, 1012.

N.D.Ill.1998. Cit. in headnote, cit. in case cit. in disc., quot. in disc. Engineering consulting firm sued competitor and the firm'sformer employee for tortious interference with business relationship or expectancy with employees. This court denied in partdefendants' motions to dismiss, holding, inter alia, that plaintiff stated a tortious interference cause of action, because plaintiffalleged several wrongful acts, including the former employee's solicitation of plaintiff's clients and employees while he wasemployed, the former employee's misappropriation of confidential information about the clients and employees, defendants'conspiratorial agreement to have the former employee perform these acts, and the competitor's use of misappropriatedconfidential information. Dames & Moore v. Baxter & Woodman, Inc., 21 F.Supp.2d 817, 820, 825.

N.D.Ill.1995. Quot. in disc., com. (i) cit. in disc. Motorcycle tire distributor sued tire manufacturer and two other distributors,alleging antitrust violations and tortious interference with contract and prospective advantage, among other claims. Plaintiffalleged that defendant distributors unjustifiably induced tire manufacturer to breach its contract with plaintiff. This court, amongother dispositions, granted defendant distributors' motions for summary judgment, holding, inter alia, that plaintiff failed to statea claim for tortious interference with contract, because the manufacturer's termination of plaintiff was not a breach of contractin that the contract was terminable at will. In addition, defendant distributors' actions were protected by the “competitors'privilege,” since lawful competition is a justifiable reason for interfering with contractual relations. Nichols Motorcycle SupplyInc. v. Dunlop Tire Corp., 913 F.Supp. 1088, 1145.

N.D.Ill.1991. Cit. in disc. and in sup., cit. generally in ftn., com. (a) quot. in disc. A software distributor sued a competitoralleging, inter alia, that the defendant had tortiously interfered with business relationships between the plaintiff and its customersand between the plaintiff and a software developer. Granting the defendant's motion for summary judgment on the plaintiff'stortious-interference claims, the court held that the defendant failed to prove that the defendant's interference constitutedimproper interference by a competitor or that it caused the plaintiff any damage. qad., inc. v. ALN Associates, Inc., 757 F.Supp.901, 908-910.

N.D.Ill.Bkrtcy.Ct.

N.D.Ill.Bkrtcy.Ct.1995. Cit. in headnote, cit. generally in sup., quot. in sup. Debtor airline sued potential buyer of its assets for,inter alia, intentional interference with prospective business relationship, contending that buyer deliberately interfered with apurchase deal debtor had with another interested party. Defendant insisted that the allegation was baseless but argued that, evenif it did interfere, it was permitted to do so under the competitor's privilege. The court agreed, holding that debtor failed to showdefendant's alleged interference was directed at the other buyer but that, even if there was intentional interference, defendantcould claim the competitor's privilege as it acted neither maliciously nor with the goal of destroying the other buyer, but withthe purpose of advancing its own interests through legal competition. In re Midway Airlines, Inc., 180 B.R. 851, 985.

N.D.Ind.

N.D.Ind.2005. Subsec. (1) quot. in sup. Manufacturer of orthopedic implants filed a state action against terminated distributor,seeking a protective order barring him from its shareholders' meeting. After removal, the former distributor countersued for, inpart, tortious interference with prospective business relations. Following a jury verdict in distributor's favor, the court grantedmanufacturer's motion for judgment as a matter of law in relation to the tortious-interference claim. The court held, inter alia,that distributor presented no evidence that manufacturer acted with absence of justification, or acted illegally, in notifyingdistributor's sales representatives that distributor was terminated and informing them of job opportunities with manufacturer.These actions were done to protect manufacturer's legitimate business interests, not exclusively to harm the former distributor.Smith v. Biomet, Inc., 384 F.Supp.2d 1241, 1249.











S.D.Ind.

S.D.Ind.2019. Quot. in case quot. in sup. Owner of study-abroad program companies brought a lawsuit against former employeeand competitor created by former employee, alleging, inter alia, that defendants tortiously interfered with a contract and witha business relationship, because former employee misappropriated plaintiff's confidential information and induced plaintiff'semployees to engage in unfair competition. This court denied defendants' motion to dismiss, holding that plaintiff allegedsufficient facts that defendants acted illegally and without justification. The court rejected defendants' argument that competitionjustified their interference, because defendants had employed "wrongful means" as defined by Restatement Second of Torts §768. Institute for International Education of Students v. Qian Chen, 380 F.Supp.3d 801, 808.

D.Kan.

D.Kan.2019. Cit. in sup., cit. in case cit. in sup. Companies owned by music-festival producer brought a lawsuit againstventure-capital firm, music-festival business owned by venture-capital firm, and limited-liability companies (LLCs) to whichthe music-festival business was transferred, alleging, inter alia, that defendants tortiously interfered with plaintiffs' businessby purposefully breaching fiduciary duties owed under the parties' agreement to produce music festivals, because defendantsintentionally reneged on their contractual duties to produce music festivals and induced partners, employees, and agents awayfrom plaintiffs. This court granted in part and denied in part defendants' motion to dismiss, holding that plaintiffs allegedsufficient facts that venture-capital firm and music-festival business tortiously interfered with plaintiffs' business, but LLCsowed no such duties to plaintiffs and did not engage in any other independently-actionable conduct. The court explainedthat, regardless of whether or not venture-capital firm and music-festival business were plaintiffs' business competitors, theallegations that venture-capital firm and music-festival business employed wrongful means through engaging in conduct thatformed the basis of independent liability meant that plaintiffs pleaded a basis for their tortious-interference claim underRestatement Second of Torts § 768. Pipeline Productions, Inc. v. Madison Companies, LLC, 428 F.Supp.3d 591, 605.

D.Kan.2010. Cit. and quot. in sup., cit. in case cit. in sup., cit. in ftn., subsec. (b) cit. in disc. Dealer of manufacturer's trailersbrought a claim for tortious interference with prospective business expectancy or relationship against manufacturer and dealer'scompetitor, after manufacturer authorized competitor to sell its trailers in dealer's territory. Following a jury verdict for plaintiff,this court granted defendants' renewed motion for judgment as a matter of law, rejecting plaintiff's argument that, becausedefendants did not assert the business-competitor privilege as an affirmative defense in the final pretrial order, they should notbe permitted to rely on it post-trial. The court reasoned that, because defendants asserted justification as a defense in the pretrialorder, and the competitor privilege had been recognized as a subset of the justification defense, the privilege was properly beforethe court. The court further held that, because defendants' allegedly wrongful acts did not rise to the level of independentlyactionable conduct, such as physical violence and fraud, they were privileged. Utility Trailer Sales of Kansas City, Inc. v. MACTrailer Mfg., Inc., 734 F.Supp.2d 1210, 1221, 1222.

D.Kan.2004. Cit. but dist., cit. in case cit. but dist., quot. in ftn. Minority members and former managers of limited-liabilitycompany (LLC) sued majority LLC corporate member and three of majority member's managers for tortious interference withprospective business advantage or relationship, inter alia. This court denied defendants' motion to dismiss tortious-interferenceclaim, holding that competitor's privilege did not apply, since defendant manager was not a business competitor to plaintiffs asthey were members and managers of same LLC, working toward same goals; thus, plaintiffs did not have to allege independentlyactionable conduct by manager to state their tortious-interference claim. Ayres v. AG Processing Inc., 345 F.Supp.2d 1200,1213, 1214.

D.Kan.2003. Cit. in sup. Radiologist sued radiology-practice group and its partners for, in part, tortious interference withprospective business advantage, alleging that defendants unlawfully converted from local health center certain medicalequipment necessary for plaintiff to perform radiological services, and that defendants improperly read at health center x-ray films that were designated for plaintiff. Granting in part defendants' motion for summary judgment, the court held thatplaintiff failed to establish that defendants engaged in “independently actionable” conduct necessary to state a claim for tortious









interference with prospective business advantage, since the evidence showed that defendants purchased the equipment fromhealth center, and that defendants' reading of films designated for plaintiff was inadvertent. Parsells v. Manhattan RadiologyGroup, L.L.P., 255 F.Supp.2d 1217, 1238.

D.Kan.1999. Cit. in disc., quot. in ftn., subsec. (1) quot. in sup. Health clinics sued hospital for, inter alia, tortious interferencewith contract and tortious interference with prospective business relations after the parties' negotiations to create a joint venturefailed and defendant hired a number of plaintiffs' physicians. Dismissing these counts of the complaint, the court held, in part,that plaintiffs had failed to establish that defendant acted maliciously or with an intent to injure plaintiffs when it decided toretain the services of the 13 physicians at issue, and that the “competitor's privilege” defense applied. Wichita Clinic, P.A. v.Columbia/HCA Healthcare Corp., 45 F.Supp.2d 1164, 1200, 1209.

D.Kan.1998. Cit. in headnotes, cit. and quot. in sup., cit. in ftn., subsec. (b) cit. in sup. The corporate manager of a paramedicalcompany sued the owner of the company for breach of their purchase agreement and management agreement, bad faith, andtortious interference with plaintiff's relationships with employees, contractors, and clients. This court granted in part and deniedin part defendant's motion for summary judgment, holding, inter alia, that defendant's competitive conduct was not improper,because the conduct was not wrongful, it concerned a matter involved in the competition between the parties, it did not createor continue an unlawful restraint of trade, and the purpose of the conduct was to advance defendant's interests in competingwith plaintiff. Because the interference alleged by plaintiff occurred after defendant terminated the management agreement,the parties were competitors during the relevant time period. Altrutech, Inc. v. Hooper Holmes, Inc., 6 F.Supp.2d 1269, 1271,1277, 1278.

D.Kan.1998. Subsec. (1)(b) cit. in headnotes and disc., com. (i) cit. in disc. Buyer of a publishing business sued former employeeand his present employers for breach of contract and tortious interference with contractual and business relations. This courtgranted in part defendants' motion to dismiss, holding, inter alia, that defendants' breach of the employment agreement, wrongfuluse of trade secrets, or interference with the employment contracts of plaintiff's former employees did not rise to the level ofwrongful action. IT Network, Inc. v. Shell, 21 F.Supp.2d 1280, 1280, 1283.

D.Kan.1998. Cit. in headnote, cit. in disc. Manufacturer of medical surgical instruments sued company that reconditioned suchinstruments for, inter alia, patent and trademark infringement, unfair competition, and tortious interference with contract andbusiness expectancy. Defendant moved for summary judgment. Granting the motion, the court held, in part, that defendantwas not liable for patent infringement, that the act of repairing trademarked goods did not constitute use of the mark, andthat defendant engaged in no wrongful means that would support a claim for tortious interference with contract or businessexpectancy. U.S. Surgical Corp. v. Orris, Inc., 5 F.Supp.2d 1201, 1202, 1211, affirmed 185 F.3d 885 (Fed.Cir.1999).

D.Kan.1997. Cit. in headnotes, cit. in disc., subsec. (1) quot. in disc. Manufacturer of night vision equipment sued competitorfor, inter alia, defamation, tortious interference with contract, and tortious interference with prospective business relations.Defendant moved for judgment on the pleadings. Granting the motion in part and denying it in part, the court held, among otherthings, that the allegations were insufficient to state a claim for defamation, and that plaintiff failed to show that defendant causeda breach of contract between plaintiff and its customers; however, to the extent plaintiff asserted that defendant misappropriatedtrade secrets and proprietary information, plaintiff satisfied the “use of wrongful means” requirement necessary to overcomethe competitor's privilege defense to a charge of tortious interference with prospective business relations. Bushnell Corp. v. ITTCorp., 973 F.Supp. 1276, 1279, 1280, 1288, 1289.

D.Kan.1997. Cit. in headnotes, cit. in disc., subsec. (1) quot. but dist., subsecs. (1)(a), (1)(c), and (1)(d) cit. in disc., com. (e) cit.in case quot. in disc. Provider of telephone and cable television services sued competitor for, inter alia, defamation and tortiousinterference with existing and prospective contractual relations, alleging that competitor obstructed and prevented provider'sentry into the local telecommunications marketplace. Defendant moved to dismiss. Granting the motion in part and denyingit in part, the court held that defendant's statements that plaintiff's customers were dissatisfied was capable of being proventrue or false, and thus plaintiff had stated a claim for defamation; that the claim for tortious interference with contract failed














because plaintiff did not show that defendant induced a third party to breach its contract with plaintiff; and that defendantwas shielded from liability for tortious interference with prospective contractual relations by the competitor's privilege. ClassicCommunications v. Rural Telephone Serv., 956 F.Supp. 910, 914, 921-922.

D.Kan.1996. Cit. in case cit. in sup., subsec. (1)(b) quot. in case cit. in sup. Provider of credit services to health-care professionalssued credit card company for tortious interference with contract and tortious interference with a prospective business advantage,alleging that 101 merchants had terminated their agreements with plaintiff. Granting defendant's motion for partial summaryjudgment, the court held, inter alia, that plaintiff failed to show that defendant engaged in any type of intentional tortious conductthat caused plaintiff damages. The court stated that, under the applicable law, simply “giving someone a better deal” did notconstitute wrongful means by defendant sufficient to overcome defendant's competitive privilege and trigger liability under atortious interference theory. PulseCard, Inc. v. Discover Card Services, Inc., 917 F.Supp. 1488, 1499.

D.Kan.1995. Cit. in headnotes, cit. in sup. and disc., cit. in case quot. in sup., subsec. (1) quot. in sup., subsec. (1)(a), (c)and (d) cit. in sup., subsec. (1)(b) cit. and quot. in case quot. in sup., coms. (b) and (e) quot. in sup., com. (g) cit. in ftn.in sup. Manufacturer of computer components who had Scope of Work Agreement (Agreement) with customer to provide asampling of eight retrofit units for installation in customer's stores sued competitor for tortious interference with contract andtortious interference with a prospective business relationship when customer contracted with competitor for the purchase of3,000 retrofit units. Granting competitor's motion for summary judgment, the court held that the Agreement created neither anenforceable nor a voidable contract for the sale of anything more than the eight units and, even if it did, competitor, whosealleged interference occurred before the Agreement was executed, could not have known of it. As to the second claim, thecourt held that competitor, a legitimate business rival, was privileged to promote its product at the expense of manufacturer's,particularly when its conduct did not restrain trade and was not improperly motivated, illegal or independently actionable. DP-Tek, Inc. v. AT & T Global Information Solutions Co., 891 F.Supp. 1510, 1512, 1521-1523, 1525, 1528, affirmed 100 F.3d 828(10th Cir.1996). See above case.

D.Kan.1987. Cit. in disc., com. (b) cit. in disc. A physician, a hospital, a health maintenance organization, and a life insurancecompany sued a corporation that provided health care financing to businesses and individuals, alleging that the defendantcommitted antitrust violations and tortious interference in connection with its efforts and ultimate announcement to terminate acontracting provider agreement with the plaintiff hospital. The jury found, inter alia, that the defendant was liable for violatingfederal and state law prohibiting tortious interference with present and prospective business relations. The defendant moved toset aside the verdict and to dismiss for lack of jurisdiction or, alternatively, for a judgment n.o.v. or a new trial. Furthermore,the defendant and a third party counterclaimed, alleging, inter alia, that the counterclaim defendant health maintenanceorganization was liable for tortious interference with contractual relations and prospective advantage because it caused twoother entities to terminate agreements with the third party. Rejecting the counterclaim plaintiffs' arguments, the court grantedthe counterclaim defendant's motion for summary judgment on the tortious-interference claim. At most, the evidence indicatedthat the counterclaim defendant attempted to persuade another entity that its best interest would be served if it continued todeal with the counterclaim defendant; in this context, such persuasion was not wrongful absent proof of unjustified intentionalinterference. Reazin v. Blue Cross & Blue Shield of Kansas, Inc., 663 F.Supp. 1360, 1492, judgment affirmed and remanded899 F.2d 951 (10th Cir.1990).

W.D.Ky.

W.D.Ky.2009. Subsec. (1) quot. in sup. Successful bidder in an auction to acquire Canadian real estate investment trust (REIT)brought a claim for tortious interference with prospective business advantage against competing bidder, alleging that defendant,by submitting a “topping” bid of $18 after the auction concluded, interfered with plaintiff's business expectancy that the REIT'sunitholders would approve its $15 bid. Denying in part plaintiff's motion for summary judgment, this court held that whetherdefendant's interference was improper was a question for the jury; questions of fact existed as to whether a press release issuedby defendant contained material misstatements and thus constituted a fraudulent misrepresentation, and whether defendant's












topping-bid process violated accepted norms and customs. Ventas, Inc. v. Health Care Property Investors, Inc., 635 F.Supp.2d612, 623.

W.D.Ky.1995. Cit. in disc. Kentucky tractor and farm supply franchisee sued Michigan franchisor for, inter alia, breach ofcontract and tortious interference with contract when franchisor refused to renew the franchise agreement and allegedly inducedfranchisee's employees to resign and seek employment with franchisee's competitor. Granting in part and denying in partfranchisor's motion for summary judgment, the court held that, pursuant to the choice-of-law provision contained in the franchiseagreement, Michigan law governed the contract claim, while Kentucky law controlled the tort claim. Moreover, material factualissues existed as to whether franchisor refused to renew the franchise agreement for discriminatory reasons and whether itwrongfully and through improper means induced franchisee's at-will employees to quit. Tractor & Farm Supply v. Ford NewHolland, 898 F.Supp. 1198, 1206.

D.Md.

D.Md.2014. Com. (i) quot. in sup., cit. in case cit. in sup. Manufacturer filed, inter alia, a claim for tortious interference withan existing contract against competitor, alleging that defendant hired plaintiff's former employees even though defendant wasaware that the employees had signed noncompete agreements. This court denied plaintiff's motion for a preliminary injunctionand granted in part defendant's motion to dismiss, holding that plaintiff failed to establish that defendant intentionally interferedwith the noncompete agreements. Citing Restatement Second of Torts § 768, Comment i, the court acknowledged that anemployer could be liable for interference with an employee's and former employer's noncompete agreement, but explained that,in this case, plaintiff failed to provide evidence of the agreements or establish that defendant knew of the agreements. EndoSurgMedical, Inc. v. EndoMaster Medical, Inc., 71 F.Supp.3d 525, 542.

D.Md.2012. Quot. in sup. As part of a wider action, nonexclusive franchisee dealership for truck manufacturer brought variousclaims against competing dealership and its owner, alleging, among other things, that competing dealership and owner tortiouslyinterfered with franchisee's dealer agreement with manufacturer. Denying competing dealership and owner's motion to dismissfranchisee's claim for tortious interference with contract, this court held that franchisee made a plausible case that owner soughtto induce manufacturer to breach its contract with franchisee to owner and dealership's benefit. The court cited franchisee'sallegations that owner allegedly encouraged manufacturer to ignore without consideration franchisee's proposed sale of itsbusiness to other buyers and attempted to convince manufacturer to only consider owner as a potential buyer. Paccar Inc. v.Elliot Wilson Capitol Trucks LLC, 905 F.Supp.2d 675, 693.

D.Md.2011. Cit. in disc., subsec. (1) quot. in disc., subsec. (2) cit. in disc. Manufacturer and servicer of high-speed continuousform printers sued competitor, alleging misappropriation of trade secrets. This court denied plaintiff's motion to dismissdefendant's counterclaims for tortious interference with contract and intentional interference with a prospective advantage inconnection with a letter that plaintiff sent to defendant's customers, holding, among other things, that the letter was not protectedas mere competition. The court reasoned that Restatement Second of Torts § 768, delineating conditions under which competitivestatements were not improper, did not apply in regard to an existing customer that purportedly breached its contract withdefendant, because that contract was not terminable at will but, rather, a one-year term contract; further, in regard to defendant'sprospective customers, if, as alleged, plaintiff obtained defendant's customer lists via improper means, its conduct was removedfrom the realm of permissible competitive statements. Oce North America, Inc. v. MCS Services, Inc., 795 F.Supp.2d 337, 348.

D.Mass.

D.Mass.1984. Com. (e) cit. in sup. A woman who sold furniture out of her apartment at big discounts sued her competitorsand a supplier of the furniture for conspiring not to supply her with goods, in violation of the Sherman Anti-Trust Act. Shealso made pendent claims for interference with advantageous relations. The plaintiff's competitors asked the defendant supplierhow the plaintiff could sell the furniture at such a discount. The supplier investigated and established a new policy of notselling furniture to retailers operating from unauthorized locations. The supplier enforced the policy by threatening to terminate












business relationships with its sellers who sold to retailers such as the plaintiff. The court granted the defendants' motion forsummary judgment. This court found that the plaintiff had failed to establish a conscious commitment to achieve an unlawfulpurpose or that her competitors caused others to refuse to deal with her. The court concluded that the defendants' behavior wasjustified because they had an economic interest and did not restrain trade. Moffat v. Lane Co., Inc., 595 F.Supp. 43, 49.

D.Minn.

D.Minn.2012. Quot. in case quot. in ftn. (erron. cit. as Restatement of Torts). Retired professional football players broughta claim for intentional interference with prospective economic advantage against certain active professional football players,alleging that defendants usurped plaintiffs' right to negotiate with the professional football league during a collective-bargainingdispute. Granting defendants' motion to dismiss, this court held that plaintiffs failed to state a claim for tortious interference withprospective economic advantage. The court reasoned that, even assuming that Minnesota recognized such a claim, defendantscould not be held liable for any interference, because no reasonable jury could find the purported interference here to beimproper; defendants' economic self-interest in pursuing the best possible deal for themselves prevailed over a similar interest ofplaintiffs where, as here, defendants did not use wrongful means. Eller v. National Football League Players Ass'n, 872 F.Supp.2d823, 830.

D.Minn.2011. Quot. in case quot. in sup. Company that provided printing, publishing, and graphic-art services sued formeremployees and competing firm that hired them, asserting a claim for, inter alia, tortious interference with business clients.Denying in part defendants' motion for summary judgment on that claim, this court held that genuine issues of material factexisted as to whether the actions of plaintiff's former sales representative and sales associate in providing firm with criticalinformation that allowed it to take a major business account from plaintiff constituted wrongful means, so as to destroy firm'sprivilege as a competitor from tort liability. Cenveo Corp. v. Southern Graphic Systems, Inc., 784 F.Supp.2d 1130, 1138.

D.Minn.1999. Cit. in case cit. in sup. After rainforest-themed restaurant sued similarly themed competitor for a declaratoryjudgment of noninfringement of defendant's claimed trade-dress rights, defendant counterclaimed for, in part, tortiousinterference with prospective business advantage, alleging that potential financial backers refused to go forward with theirinvestments in its expansion plans after plaintiff entered into the rainforest-themed restaurant concept. Denying plaintiff's motionfor summary judgment on the counterclaim, the court held that a genuine issue of material fact existed as to whether plaintiff usedwrongful means to intentionally interfere with defendant's business advantage, given that fact questions existed as to whetherplaintiff engaged in trade-dress and trademark infringement. Rainforest Cafe, Inc. v. Amazon, Inc., 86 F.Supp.2d 886, 908.

D.Minn.1997. Quot. in case quot. in disc. An importer of malt-beverage and cider products sued a beer wholesaler engaged inthe business of selling and distributing malt beverages and other beverage products at wholesale, seeking a declaratory judgmentthat it was not liable to the wholesaler for allegedly improperly terminating the wholesaler as the distributor of two beer products.The wholesaler counterclaimed, alleging, among other things, tortious interference with contractual relations and prospectiveeconomic advantage. This court granted the importer summary judgment on the tortious-interference counterclaim, holding,inter alia, that the wholesaler failed to allege any wrongful conduct by the importer and that the wholesaler had not set forththe existence of an underlying contract for its tort claims. Guinness Import Co. v. Mark VII Distributors, Inc., 971 F.Supp. 401,413, affirmed 153 F.3d 607 (8th Cir.1998).

D.Minn.1989. Quot. in disc. A tour operator sued an airline and a competing tour operator on a theory of interference withprospective contractual relations, inter alia, alleging that the defendants conspired to put the plaintiff out of business by launchinga multipronged attack on its programs by charging the plaintiff higher rates for seats and giving the plaintiff less desirable flyingtimes. Denying the defendants' motion for summary judgment, the court held that, because the plaintiff's accusation against thedefendant tour operator of unlawful concerted activity in restraint of trade was still alive in this case, the plaintiff's claim forintentional and improper interference with prospective contractual relations must remain as well. International Travel Arrangersv. NWA, Inc., 723 F.Supp. 141, 155.













D.Minn.1989. Quot. in case quot. in disc. (Erron. cit. as Torts 1st.) An insurance subagent sued several parties, includingan independent insurance agency and an underwriter, alleging, inter alia, antitrust violations and tortious interference witheconomic relations after the subagent was allegedly wrongfully prevented from selling certain insurance policies to banks inMinnesota. This court granted in part the defendants' motions for summary judgments, holding, in part, that the underwriter'spolicy of not allowing its representatives to solicit the business of any account already written through the independent agenciesthat marketed its products was not an unreasonable restraint on trade, absent evidence that the underwriter had significant localmarket power. The court also held that the tortious-interference claim was not actionable, because the economic relationshipallegedly interfered with was terminable at will, and the sale of the insurance policies were matters within the ambit ofcompetition between the plaintiff and the defendant independent agent. Furthermore, the court concluded that the independentagent's conduct was privileged, finding that the independent agent's desire was to protect its position as the underwriter's leadingagent in Minnesota, and that it did not use wrongful means to achieve the alleged interference. James M. King & Assoc. v. G.D.Van Wagenen Co., 717 F.Supp. 667, 679-680.

S.D.Miss.

S.D.Miss.1993. Subsec. (1) cit. in disc. Reinsurer in fronting arrangement, reinsurance device used by company not qualifiedor licensed to do business in particular state to profit from sale of insurance in that state, sued fronting insurer for, among otherclaims, tortious interference with plaintiff's contractual relations with two of plaintiff's primary customers. Plaintiff alleged thatdefendant proposed direct contract arrangements with customers, which would eliminate plaintiff's role as reinsurer. The courtdenied defendant summary judgment, holding that whether defendant was entitled to competitor's privilege was question tobe resolved by trier of fact, considering factors such as defendant's motive, plaintiff's interest with which defendant interfered,interest sought to be advanced by defendant, and social interest in protecting freedom of defendant's conduct and plaintiff'scontractual interest. Union Sav. American Life v. North Cent. Life, 813 F.Supp. 481, 491.

E.D.Mo.

E.D.Mo.1992. Cit. in case cit. in disc. Missouri-based prospective purchaser of coal operations brought an action for tortiousinterference with prospective economic advantage, inter alia, against the nonresident parties that sold and ultimately bought thecoal operations, claiming that it had an exclusive agreement with seller. Granting in part and denying in part defendants' motionsto dismiss for lack of personal jurisdiction, the court held that although plaintiff made a prima facie showing of the elementsof the tort sufficient to confer jurisdiction on defendants under the Missouri long-arm statute, including proof of absence ofjustification in that defendants' engagement in negotiations was wrongful conduct, the lack of contacts by defendant buyer withMissouri were such that the exercise of personal jurisdiction over it would violate constitutional due process; defendant seller'sactions, however, in purposefully availing himself of the benefits of conducting business in Missouri were sufficient minimumcontacts such that the exercise of personal jurisdiction over him would not violate constitutional due process. Peabody HoldingCo., Inc. v. Costain Group PLC, 808 F.Supp. 1425, 1434, 1435.

E.D.Mo.1987. Quot. and cit. in disc., cit. in case cit. in disc. A distributor sued a manufacturer of industrial compressorsfor tortious interference with business relations and antitrust violations after the manufacturer terminated their distributorshipagreement. This court granted in part and denied in part the defendant's motion for judgment n.o.v., and denied the plaintiff'smotion for a new trial or judgment n.o.v. on the defendant's counterclaim for money owed on an open account. The court notedthat competitive conduct that was neither illegal nor independently actionable did not become actionable merely because itinterfered with another's prospective contractual relations. The court concluded that in this case a reasonable juror could havefound that the defendant's conduct crossed over to the improper side of the wrongful means line, thereby supporting the absenceof the justification element usually required for tortious interference. Machine Maintenance & Equip. v. Cooper Industries, 661F.Supp. 1112, 1115-1116.










W.D.Mo.

W.D.Mo.2014. Cit. in sup., quot. in case quot. in sup. Seller that contracted to supply buyer with fuel for buyer's conveniencestores sued tenant that leased the stores from buyer, alleging that tenant tortiously interfered with the contracts between buyerand seller by entering into leases with buyer that did not require it to purchase fuel from seller. After a bench trial, this courtheld that tenant was liable for tortious interference, because it “caused” buyer's nonperformance of the contracts and becauseits actions were without justification. The court pointed out that, under Restatement Second of Torts § 768, interference by acompetitor was proper only in situations in which a party was caused not to enter into a prospective contractual relationshipor to terminate an existing contract that was terminable at will. Here, tenant was in competition with buyer and did not havean economic interest in buyer's stores before it leased them, and the fuel-supply contracts between buyer and seller were notprospective possibilities but rather existing contracts that were not terminable at will. Eagle Fuels, LLC v. Perrin, 10 F.Supp.3d1028, 1044.

W.D.Mo.1985. Cit. in disc., subsec. (1) cit. in disc. A distributor had delivered a manufacturer's goods to two warehouses and14 stores for many years without any written agreement. After the manufacturing company came under new management, itbegan dealing directly with the warehouses, and refused to deal with the distributor causing the distributor to lose the 14 storesas customers. The distributor sued the manufacturer for breach of an implied-in-fact contract and for tortious interference withits implied contracts with the customers. This court found for the manufacturer, holding that any contracts that existed wereterminable at will, and that there had been no legal impropriety in the defendant's actions. The court noted that the manufacturerhad competed with the distributor in its own economic self-interest, and held that the manufacturer could not be held liablefor inducing the breach of a contract in which it had an economic interest absent improper means, nor for inducing the breachof a contract merely by refusing to deal, absent a statutory or independent wrong. Circo v. Spanish Gardens Food Mfg. Co.,Inc., 643 F.Supp. 51, 55.

W.D.Mo.1982. Cit. in case quot. in ftn. A city and its industrial development authority sued three corporations for damagesallegedly resulting from the alleged loss of an urban development action grant, asserting theories of breach of contract, maliciousinterference, and negligent misrepresentation. The defendants moved for summary judgment and the plaintiffs moved for adeclaration of their right to file first amended complaint or for leave to file first amended complaint. The federal district courtgranted the defendants' motion for summary judgment on the count alleging breach of contract. Recovery for breach of contractwas precluded by noncompliance with a Missouri statute requiring that contracts with municipal corporations be in writingand dated when made, and subscribed thereto by the parties or their agents. Recovery for tortious interference would not beprecluded on the ground that the claim arose from directions of a parent corporation to its wholly owned subsidiary. The tortof unjustified interference in business relations went beyond inducing a breach of contract: it also protected the reasonableexpectancies of commercial relations even where an existing contract was lacking. The privilege to vigorously compete was notunlimited; a corporation was not entitled to employ wrongful means to further his own competitive goals or create or continuean unlawful restraint of trade. The plaintiffs were to prepare and file similar but separate legal and factual statements in regardto each cause of action which they purported to allege in their tortious interference and negligent misrepresentation counts, andin each count in the proposed amended complaint, directing the court's attention to all documentary evidence and depositiontestimony which the plaintiffs believed was sufficient to establish a prima facie case in regard to each of the elements. City ofWarrensburg v. RCA Corp., 550 F.Supp. 1364, 1384, opinion supplemented 571 F.Supp. 743 (W.D.Mo.1983).

D.N.H.

D.N.H.2012. Com. (e) cit. in sup. Military equipment manufacturer sued former employee and competitor, asserting, interalia, a claim for intentional interference with contractual relations. Denying defendants' motion to dismiss this claim, thiscourt held, inter alia, that, while New Hampshire recognized two distinct tortious-interference theories: intentional interferencewith existing contractual relations and intentional interference with prospective contractual relations, and plaintiff appearedto combine both torts into a single claim, it asserted a viable claim for the latter only. Plaintiff alleged that, in the course ofsoliciting business from its customers, defendants made "harmful false statements" about it and its products; inducing a third










person by fraudulent misrepresentations or defamatory statements not to do business with the plaintiff could constitute wrongfulconduct sufficient to support a claim for interference with prospective contractual relations. Wilcox Industries Corp. v. Hansen,870 F.Supp.2d 296, 307.

D.N.H.2002. Quot. in sup., coms. (e) and (f) cit. in sup. Exclusive marketing agent that had temporary agreement with designautomation company for its product line sued competitor that acquired company and then refused to negotiate permanentagreement with agent, alleging breach of contract and intentional interference with contractual and prospective businessrelations. This court granted defendant partial summary judgment, holding that plaintiff's tortious-interference claim failed, sincedefendant's actions were protected by “competitor's privilege.” Defendant offered to buy company, performed due diligence,and executed acquisition; regardless of whether defendant knew of plaintiff's letter of understanding with company, defendantdid not use wrongful means designed to injure or destroy plaintiff's distribution rights or improperly thwart prospective contractbetween plaintiff and company. Alternative Systems Concepts, Inc. v. Synopsys, Inc., 229 F.Supp.2d 70, 74, 75.

D.N.J.

D.N.J.2000. Quot. in case quot. in sup. Owner of patent on device used to protect computers from electromagnetic interferencesued competitor for, in part, tortious interference with contract and with prospective economic advantage. Granting in partdefendant's motion for summary judgment, the court held, inter alia, that even if defendant's conduct in marketing its ownproduct to plaintiff's customer caused the customer not to contract with plaintiff, defendant did not engage in tortious interferenceunder New Jersey law, absent evidence that its conduct was wrongful. A.K. Stamping Co. v. Instrument Specialties Co., 106F.Supp.2d 627, 648.

D.N.J.1994. Cit. in sup. A hair-care products manufacturer sued a wholesaler and a retailer that allegedly diverted productsthat manufacturer intended to be sold only in beauty salons. This court entered judgment for defendants, holding, inter alia,that plaintiff did not prove tortious interference with contract since it failed to prove the existence of an enforceable contractualobligation and failed to proved that defendants had knowledge of the terms or existence of the written contract that had beensigned by two of the diverters. It stated that although plaintiff and defendants did not compete directly, the interests at issue herewere largely the same as those at issue between direct competitors. Specifically, defendants were simply attempting to make aprofit through the sale of plaintiff's goods, just as a competitor would attempt to make a profit by competing with plaintiff forconsumers. Matrix Essentials, Inc. v. Cosmetic Gallery, Inc., 870 F.Supp. 1237, 1248.

D.N.J.1992. Com. (e) cit. in case cit. in sup. A corporation that manufactured and sold pollution control chemicals andrelated equipment sued its former agent in the Philippines, alleging various claims, including one for unfair competition frommisappropriation of trade secrets, and seeking preliminary injunctive relief. Plaintiff had entered into direct dealings with a majorPhilippine government customer after its agency agreement with defendant expired, but defendant had attempted to repositionitself as middleman in transactions between plaintiff and the customer and then represented itself to the customer as beingable to provide competing chemicals and equipment at reduced prices. This court, determining that plaintiff was not entitled toinjunctive relief, held, inter alia, that plaintiff had not demonstrated a likelihood of success on its unfair competition claim, evenif defendant had obtained confidential information, including access to prices and discounts offered to the customer, as plaintiffhad failed to establish, among other things, that defendant had gained unfair competitive advantage from its relationship withplaintiff. Apollo Technologies Corp. v. Centrosphere Indus. Corp., 805 F.Supp. 1157, 1205.

D.N.J.1989. Subsec. (1)(b) and com. (e) cit. in disc. (Cit. as com. on clause (b).) A New Jersey organ procurement agencyintervened in a suit by a Delaware organ procurement agency against the commissioner of the New Jersey department ofhealth, who had granted the intervenor exclusive rights to act in New Jersey, counterclaiming for tortious interference withits relationships with New Jersey hospitals. Denying the intervenor's motion for summary judgment, the court held that theintervenor failed to introduce evidence that was more than merely colorable, that showed that the plaintiff's operations wereunlawful, or that it had suffered damages as a result of the plaintiff's operations. The court stated that the intervenor's evidence










of a mere telephone call in response to a confusing message could not provide the basis for the finding of malicious intent ofinflicting injury on a rival's business. Delaware Valley Transplant Program v. Coye, 722 F.Supp. 1188, 1203.

E.D.N.Y.

E.D.N.Y.2004. Cit. in disc. Wholesale distributors of home videos and DVDs sued competing distributors and a supplier of thevideos, alleging, in part, tortious interference with a contractual relationship. This court dismissed tortious-interference claimagainst supplier on all counts and against defendant distributors as to plaintiffs' contracts with customers, but not the claimagainst defendant distributors as to plaintiffs' contracts with supplier. Plaintiffs did not specify which contracts with customerswere interfered with and whether those contracts were terminable at will. However, plaintiffs' contracts with supplier appearedto be terminable at will, and their allegation of Sherman Act violations sufficiently pled that defendants used wrongful means inbringing about supplier's breach. Flash Electronics, Inc. v. Universal Music & Video Distribution Corp., 312 F.Supp.2d 379, 404.

N.D.N.Y.

N.D.N.Y.2004. Cit. and quot. in disc., com. (f) quot. in disc. Freestanding ambulatory surgical facility sued nonprofit communityhospital and its corporate parent for federal antitrust violations and intentional interference with contractual and businessrelations after hospital entered into exclusivity agreements with insurance providers. Granting defendants' motion for summaryjudgment on the interference-with-business-relations claim, the court held, inter alia, that plaintiff failed to show that, by enteringinto exclusive contract with second-largest insurance provider, hospital engaged in culpable conduct that foreclosed a sufficientshare of the market so as to create an unreasonable restraint of trade. Rome Ambulatory Surgical Center, LLC v. Rome MemorialHospital, Inc., 349 F.Supp.2d 389, 423.

S,D.N.Y.

S.D.N.Y.2014. Quot. in case quot. in sup., com. (e) cit. in case quot. in sup. Importer of whiskey from an Irish whiskey distilleryfor sale under its own brand name brought, inter alia, a claim for tortious interference with business relations against distillery'sparent corporation, which sold a competing brand of whiskey, alleging that defendant intentionally misrepresented plaintiff'sbrand to distributors in order to disrupt plaintiff's supply chain. Denying defendant's motion to dismiss, this court held thatplaintiff sufficiently pled that defendant used wrongful means, a required element of a claim for tortious interference withbusiness relations. The court cited Restatement Second of Torts § 767, Comment e, in noting that wrongful means includedphysical violence, fraud or misrepresentation, civil suits and criminal prosecutions, and some degrees of economic pressure.Sidney Frank Importing Co., Inc. v. Beam Inc., 998 F.Supp.2d 193, 212.

S.D.N.Y.

S.D.N.Y.2008. Subsec. (1)(b) quot. in ftn., com. (e) cit. in ftn., quot. in disc., and quot. in case quot. in sup. As part of a wideraction, supplier of petroleum products sued its customer's affiliate and parent company for tortious interference with businessrelations, alleging, among other things, that these defendants wrongfully interfered with its sale of hydrocracker bottoms tocustomer by directing customer to purchase the bottoms from affiliate at a higher price and/or at less advantageous terms. Thiscourt dismissed the claim for failure to state a claim, holding that plaintiff could not rely on Restatement Second of Torts § 768,Comment e for support, because the pressure brought to bear by affiliate and parent was related to the business in which plaintiffand defendants engaged, and, even if the business had not been related, plaintiff had not alleged conduct that was sufficientlyextreme, unfair, and egregious as required by New York law. Darby Trading Inc. v. Shell Intern. Trading and Shipping Co. Ltd.,568 F.Supp.2d 329, 343-346.

S.D.N.Y.2004. Cit. in case quot. in sup., com. (e) cit. generally in case quot. in sup. Development group sued competitor forintentionally interfering with plaintiff's noncontractual but prospective business advantage with Indian tribe in connection with











proposed casino. District court dismissed, holding that plaintiff did not raise issue of material fact as to either “wrongful means”or “knowing participation in breach of fiduciary duty.” There was no evidence that defendant knowingly induced CEO of third-party corporation to create payroll squeeze that caused financial problem that led tribe to default in making payments to state,so as to induce tribe to enter into exclusive casino-development contract with defendant. Catskill Development, L.L.C. v. ParkPlace Entertainment Corp., 345 F.Supp.2d 360, 363, vacated and remanded ___ Fed.Appx. ___, 2006 WL 558539 (2d Cir.2006).

S.D.N.Y.2001. Cit. in sup. Magazine and book wholesalers in Ohio sued another wholesaler and various magazine and bookdistributors for tortious interference with advantageous business relationships, among other claims, alleging that defendantwholesaler caused distributors to violate plaintiffs' exclusive territories and permit wholesaler to sell to retailers in plaintiffs'territories. This court dismissed plaintiffs' tortious-interference claim, holding, inter alia, that defendant wholesaler's actionswere not improper, because the relationships between plaintiffs and distributors concerned a matter in which plaintiffs andwholesaler allegedly competed, wholesale sales of publications. Furthermore, wholesaler did not use wrongful means as definedunder Ohio law. United Magazine Co. v. Murdoch Magazines Distribution, Inc., 146 F.Supp.2d 385, 408-409.

S.D.N.Y.1992. Cit. in ftn. A former employee who was fired from his job sued his former employer, its parent corporation,and former co-workers, alleging age discrimination, tortious interference with contract, and intentional infliction of emotionaldistress. This court denied in part defendants' motion to dismiss, holding, inter alia, that plaintiff sufficiently alleged facts which,through discovery, could demonstrate that the parent corporation and the co-workers, acting on personal motives, intentionallyand improperly interfered with plaintiff's employment contract with employer. The court stated that if employer terminatedplaintiff for a reason that was not allowed by law, the fact that plaintiff was an at-will employee would be irrelevant; thetermination would be unjust and improper. The court noted that this Restatement section discussed the propriety or improprietyof interference by competitors and as such was not applicable here. Agugliaro v. Brooks Bros., Inc., 802 F.Supp. 956, 963.

S.D.N.Y.1990. Cit. in disc., com. (e) cit. in disc. A ship run by seamen from a union was denied the port services of a rival unionand forcibly moved from the port. The ship's union sued the rival union alleging, among other things, antitrust violations andtortious interference with contractual rights. The rival union counterclaimed. The district court denied the parties' motions forsummary judgment as to the plaintiff's claims of intentional interference with an existing contract and tortious interference withprospective economic advantage, holding, inter alia, that a material issue of fact existed as to whether the rival union's contractwas entirely proper. The court found that alleged statements made to the crew of the ship may have threatened violence and thealleged forcible moving of the ship could qualify as wrongful means. However, the court dismissed the defendant's counterclaimalleging unlawful interference with contract, because the defendant did not allege that the plaintiff used any wrongful means byvirtue of the plaintiff's signing a contract with the owners of a different ship while it was still under contract with the defendant.Perry v. International Transport Workers' Fed., 750 F.Supp. 1189, 1207.

S.D.N.Y.1985. Cit. in case quot. in disc. A distributor of newspaper strapping machines sued the manufacturer for tortiousinterference with prospective economic advantage. The court denied the distributor's motion to confirm an order of attachmentand restraining order against the manufacturer. The court held that the claim failed because the distributor had not establishedthat the manufacturer had knowingly interfered with the distributor's business dealings with a third party. Strapex Corp. v.Metaverpa N.V., 607 F.Supp. 1047, 1050.

S.D.N.Y.1976. Com. (c) cit. in ftn. in sup., and Note to Institute (2) cit. in sup. (T.D. No. 14, 1969). The owner of a touristattraction and a restaurant management corporation which had been operating food and beverage facilities at the attraction wereunable to agree on a new contract, and the owner of the attraction hired an employee of the corporation to operate the facilities.The corporation sued, inter alia, on a theory that the owner had interfered with its business relation with the employee, but thecourt held that the owner, as a competitior of the corporation, was privileged to induce the termination of a contract betweenthe corporation and the employee when the contract was terminable at will. Restaurant Associates, Etc. v. Anheuser-Busch,Inc., 422 F.Supp. 1105, 1110.













S.D.N.Y.Bkrtcy.Ct.

S.D.N.Y.Bkrtcy.Ct.2010. Com. (e) quot. in case quot. in sup. Trustee for substantively consolidated Securities InvestorProtection Act (SIPA) liquidation of investment company that operated a Ponzi scheme brought an adversary proceedingagainst holders of accounts with a brokerage firm, seeking to avoid preferential payments and fraudulent transfers; defendantscounterclaimed for, inter alia, tortious interference with a business relationship. Granting plaintiff's motion to dismiss thecounterclaims, this court held that plaintiff did not tortiously interfere with defendants' business relationship with firm by sendinga notice letter to firm stating that firm might have received SIPA “customer property” from liquidated company, after which firmfroze defendants' accounts. The court explained that defendants failed to allege the type of “more culpable conduct” on plaintiff'spart—i.e., that sending the letter constituted criminal behavior or that it was sent for the sole purpose of inflicting intentionalharm on defendants—necessary to support their tortious-interference claim; on its face, the letter served the legitimate purposeof bringing a potential conflict to firm's attention. In re Bernard L. Madoff Inv. Securities LLC, 440 B.R. 282, 296.

N.D.Ohio

N.D.Ohio, 2003. Subsec. (1) quot. in sup., com. (a) cit. in sup. Florida employer sued Ohio former employee and his newcompany for breach of noncompete agreement, tortious interference with contract and business relationship, and a preliminaryinjunction, after new company contracted with plaintiff's former hospital client to serve as sole provider of perfusion services.This court denied plaintiff's motion for preliminary injunction restraining new company from performing its contract withhospital, holding, inter alia, that plaintiff was not substantially likely to prevail on claim for tortious interference with prospectivecontractual relationship. Given uncertain applicability of noncompete clauses, it was possible that defendants were simplycompeting for hospital's business, and were therefore protected by fair-competition privilege. Extracorporeal Alliance, L.L.C.v. Rosteck, 285 F.Supp.2d 1028, 1043, affirmed 113 Fed.Appx. 98 (6th Cir.2004).

S.D.Ohio,

S.D.Ohio, 2017. Adopted in case cit. in sup. Registered investment-advisory firm brought a claim for tortious interference withcontract against competitor and competitor's principal after plaintiff's investment-advisor representative left plaintiff to workfor defendants. This court denied in part defendants' motion for summary judgment, holding that genuine issues of material factremained as to whether defendants employed wrongful means such that it was not entitled to assert the affirmative defense of“fair competition.” The court noted that the Ohio Supreme Court had adopted the “fair competition” defense from RestatementSecond of Torts § 768 in the context of a claim for tortious interference with contract, and that such a defense was potentiallyavailable where, as here, an at-will contract was at issue. Horter Investment Management, LLC v. Cutter, 257 F.Supp.3d 892,926.

S.D.Ohio, 2013. Cit. in case cit. in sup. Manufacturer of emergency lighting products sued distributor, alleging breach ofthe parties' supply agreement and other claims; distributor counterclaimed for, among other things, tortious interferencewith business relationships, alleging that manufacturer had begun selling lighting products made with distributor's tooling todistributor's customers without distributor's permission. This court denied summary judgment for manufacturer as to distributor'scounterclaim for tortious interference with business relationships, holding that questions of fact remained as to whethermanufacturer's activities in the market were improper or simply appropriate competition. The court noted that determiningwhether manufacturer's actions were improper was interrelated with determinations as to the parties' intent in entering the supplyagreement, and whether manufacturer unjustifiably copied distributor's products. Kehoe Component Sales Inc. v. Best LightingProducts, Inc., 933 F.Supp.2d 974, 1018.

S.D.Ohio











S.D.Ohio, 2003. Cit. in case cit. in sup., subsec. (1) quot. in sup. Plastic-bag manufacturer sued competitor for, interalia, declaratory judgment that it did not infringe defendant's patent and that defendant's patent was invalid. Defendantcounterclaimed for, inter alia, tortious interference with contract and business relations with grocery stores and with its productdistributor. This court granted plaintiff's motion for partial summary judgment on defendant's counterclaims, holding, inter alia,that plaintiff did not employ wrongful means when it negotiated with distributor and grocery stores for their business. Plaintiff'soffer of a lower price simply constituted a better deal for distributor, who chose to purchase plaintiff's bags instead of defendant'sbags. Cannon Group, Inc. v. Better Bags, Inc., 250 F.Supp.2d 893, 903-904.

S.D.Ohio, 2003. Cit. in disc. Owners of trademarks for several legal-research and information products and services suedcompetitor for trademark infringement and dilution, false advertising, unfair competition, and tortious interference with abusiness relationship. This court denied defendant's motion to dismiss plaintiffs' tortious-interference claim, holding, inter alia,that it was not obvious on the face of plaintiffs' complaint that defendant was unaware of any such business relationship betweenplaintiffs and others, or was privileged to interfere therewith. The court rejected defendant's assertion that because it was anobvious competitor of plaintiffs, any act of interference that it did commit was privileged. Reed Elsevier, Inc. v. Thelaw.NetCorp., 269 F.Supp.2d 942, 949.

S.D.Ohio, 2002. Cit. generally in case cit. in sup. Former employee who worked on project in England sued employer forbreach of contract and promissory estoppel for employer's failure to pay for standby time and lodging. This court overruledin part defendant's motion for summary judgment, holding that a fact issue existed as to whether field discussions and field-assignment document created an implied contract. The court noted that the fact that plaintiff's employment was terminable at-will did not require the conclusion that the parties could not have reached an agreement regarding plaintiff's compensation andother benefits. Russell v. GTE Government Systems Corp., 232 F.Supp.2d 840, 853.

S.D.Ohio Bkrtcy.Ct.

S.D.Ohio Bkrtcy.Ct.1997. Cit. in headnotes, cit. in sup., quot. but dist., cit. in ftn. in disc., cit. in ftn. in sup., com. (b) quot. incase cit. in ftn. Attorney who was in the midst of representing client in a personal-injury case when he was fired so that clientcould retain debtor-attorney filed claim against debtor and client for $25,000 in attorney fees; claimant-attorney also sought$25,000 in punitive damages and interest from debtor. At the same time, client filed a cross-claim against debtor, allegingthat debtor fraudulently induced into her into retaining him with a promise that he would pay claimant's fees. Claimant anddebtor moved for summary judgment. Granting claimant's motion and denying that of debtor, the court held that debtor, withoutprivilege or justification, tortiously interfered with claimant's employment contract by inducing client to discharge claimant,and that debtor, having misrepresented to client the source of claimant's fees, employed wrongful means; however, furtherfactfinding was necessary to determine the exact amount of damages to which claimant was entitled. Matter of Gettys, 205B.R. 515, 516, 521, 522.

D.Or.

D.Or.1993. Com. (f) cit. in sup. The manufacturers and sellers of a machine sued a competitor for alleged antitrust violationsand intentional interference with prospective business relations. Denying in part the defendant's motion to dismiss for failure tostate a claim, this court held, inter alia, that, under Oregon law, allegations that defendant falsely accused plaintiffs of infringingon its patent, even though defendant was aware that the accusations were false, in an illegal attempt to restrain competitionand maintain its share of the market, were sufficient to state an intentional-interference claim. Johnson v. Con-Vey/Keystone,Inc., 814 F.Supp. 931, 935.

E.D.Pa.











E.D.Pa.2018. Quot. in disc., cit. in case cit. in disc.; coms. (b) and (e) quot. in disc. Reclaimed-materials corporation and itschief executive officer brought a lawsuit against consultant and consultant's companies that were competitors of plaintiffs,alleging, inter alia, that consultant breached a contract between the parties by using plaintiffs' patented products for his ownbusiness; one of consultant's companies counterclaimed, alleging that plaintiffs tortiously interfered with company's contractualrelations by making disparaging remarks about it and consultant. This court denied in part company's motion for summaryjudgment, holding that the tortious-interference counterclaim failed because plaintiffs' statements were privileged. The courtcited Restatement Second of Torts §§ 767 and 768 in explaining that plaintiffs' actions—making statements about the perceivedwrongdoing of company, informing its customers of the parties' legal dispute, and persuading customers by legal means to dobusiness with plaintiffs rather than defendants—constituted privileged, non-predatory statements. Ecore International, Inc. v.Downey, 343 F.Supp.3d 459, 503, 504.

E.D.Pa.2017. Cit. in ftn., adopted in case quot. in sup.; subsec. (1) quot. in sup.; com. (i) cit. and quot. in sup. Seller ofmedical devices sued competitor, alleging, among other things, that competitor tortiously interfered with seller's employmentcontracts with its sales consultants by soliciting the consultants to resign from seller and join competitor. This court denied inpart competitor's motion to dismiss, holding that seller stated a claim that competitor interfered with the employment contractsbetween seller and consultants. The court rejected competitor's argument that seller's claims against it were barred by thebusiness-competitors' privilege under Restatement Second of Torts § 768, explaining that the privilege did not shield a companyfrom tortious interference with an employee who was bound by a covenant not to compete, and seller alleged the consultantsin question were working for competitor within the geographic territory that they covered when they were employed by seller,in violation of their contracts with seller. DePuy Synthes Sales, Inc. v. Globus Medical, Inc., 259 F.Supp.3d 225, 243-245.

E.D.Pa.2016. Cit. in sup., quot. in case quot. in sup.; com. (e) quot. in sup. Individual taxicab drivers and advocacy organizationfor taxicab companies filed claims for, among other things, unfair competition and tortious interference with contractual relationsagainst transportation-network company, alleging that defendant wrongfully recruited plaintiffs' taxicab drivers and used moneyit gained from its illegal operation in an attempt to drive plaintiffs from the marketplace. This court granted defendant's motionto dismiss the amended complaint, holding, inter alia, that plaintiffs' allegations that defendant's operation was in violation ofstate law or municipal regulations could not support a private cause of action for unfair competition or tortious interference.The court explained that plaintiffs failed to show that defendant was not privileged or justified in interfering with plaintiffs'contracts, which was necessary to support a tortious-interference claim under Restatement Second of Torts § 768, and quoted §768, Comment e, in noting that physical violence, fraud, civil suits, and criminal prosecutions amounted to “wrongful means”in the context of such a claim. Philadelphia Taxi Association, Inc. v. Uber Technologies, Inc., 218 F.Supp.3d 389, 395, 396.

E.D.Pa.2014. Cit. in ftn. International logistics company brought, inter alia, a claim for tortious interference with contractualrelations against new competitor in the customs brokerage industry and certain individuals and corporate entities involved inits launch, alleging that defendants induced former employees of plaintiff to breach their covenants with plaintiff. Grantingsummary judgment for defendants on this claim, this court held that plaintiff failed to establish the essential elements essentialto its case, since there was no proof that two of plaintiff's former employees breached their limited contracts with plaintiff, orthat defendants specifically intended to harm the existing relation established between another former employee and plaintiffby his noncompete covenant. The court noted that defendants had asserted the “business competitor's privilege” codified byRestatement Second of Torts § 768, but that Pennsylvania courts had found § 768 not to apply when the business competitorwas a former employee of the plaintiff. Ozburn-Hessey Logistics, LLC v. 721 Logistics, LLC, 13 F.Supp.3d 465, 479.

E.D.Pa.2013. Cit. in sup., cit. in cases quot. in sup. Apparel manufacturer sued distributor of its products, alleging, inter alia,that defendant tortiously interfered with plaintiff's oral contract with the Chinese manufacturer of its products by inducingmanufacturer to violate its confidentiality agreement with plaintiff and manufacture products for defendant using plaintiff'sproprietary formulas and methods. Granting defendant's motion to dismiss this claim, this court held that plaintiff failed tostate a claim for tortious interference with an existing contractual relationship, because it did not allege facts that satisfactorilydemonstrated that defendant's conduct was not privileged. The court reasoned that Pennsylvania courts looked to RestatementSecond of Torts § 768 and its definition of “wrongful means” for guidance as to whether a defendant had acted with privilege









or justification, and that, under § 768, in the absence of some evidence that defendant engaged in an independently actionabletort, it was shielded from liability by the competition privilege. Alpha Pro Tech, Inc. v. VWR Intern. LLC, 984 F.Supp.2d 425,448, 449.

E.D.Pa.2013. Cit. in sup., cit. and quot. in case quot. in sup. Waste hauler brought claims for tortious interference with existingand prospective contracts against competitor, after defendant entered into an agreement to provide waste services for one ofplaintiff's clients, which then terminated plaintiff's hauling services on two major accounts. Granting summary judgment fordefendant, this court held, inter alia, that plaintiff failed to show that defendant lacked a privilege or justification for its behavior.The court concluded that defendant did not act improperly when it approached client with its own offer, reasoning that defendantemployed no wrongful conduct; there was no evidence that defendant acted with a specific intent to harm plaintiff; there wasno proof that client actually breached its contracts with plaintiff; and defendant's economic interest prevailed over plaintiff'sinterest in its nonexclusive contracts with client, where defendant used no wrongful means. BP Environmental Services, Inc v.Republic Services, Inc, 946 F.Supp.2d 402, 408, 409, 411.

E.D.Pa.2010. Cit. and quot. in sup., cit. in disc., cit. in ftn., adopted in case quot. in sup., cit. in cases cit. in disc. and sup., cit. incase quot. in ftn.; subsecs. (1)(a)-(1)(d) cit. in sup.; subsec. (1)(b) cit. in sup., cit. in case quot. in ftn., and discussed in case cit. insup.; subsec. (2) cit. in ftn.; com. (e) quot. in disc.; com. (i) quot. in disc. and sup. Software developer sued manufacturer of chip-mounting machinery, alleging that defendant tortiously interfered with its contract with a group of third-party consultants whendefendant hired away the consultants from plaintiff's employ to perform work that plaintiff had previously done for defendant.Granting defendant's motion to dismiss, this court held that the business-competitor's privilege applied to defendant's conduct,and that the conduct did not rise to the level of predatory means, physical violence, fraud, civil suits, or criminal prosecutionsso as to constitute wrongful means that would bar invocation of the privilege. Assembly Technology Inc. v. Samsung TechwinCo., Ltd., 695 F.Supp.2d 168, 172-177, 181.

E.D.Pa.2010. Cit. in case cit. in disc. Document-processing company sued competitor and parent of debt-collection agency,alleging that defendants tortiously interfered with plaintiff's contract to process, print, and mail debt-collection agency'scollection letters. This court, inter alia, denied defendants' motion for summary judgment as to this claim against parent,concluding that a genuine issue of material fact existed as to whether parent's interference with the contract was privileged/proper. The court noted that those cases that had acknowledged a corporate-parent privilege under Pennsylvania law, allowinga corporate parent to interfere in the contractual relations of its subsidiaries, had done so only in the context of a prospectivecontract or a contract terminable at will. PSC Info Group v. Lason, Inc., 681 F.Supp.2d 577, 595.

E.D.Pa.2002. Quot. in case cit. in disc. Broker-dealer in bonds sued competitor for antitrust violations and tortious interferencewith contractual relations after its attempt to introduce a “transparent” bond-trading system failed. Granting defendant's motionfor summary judgment, the court held, inter alia, that defendant's conduct in expressing negative reaction to plaintiff's productcould not support claim for tortious interference where defendant did not use wrongful means to advance its interest in competingwith plaintiff. Intervest Financial Services, Inc. v. S.G. Cowen Securities Corp., 206 F.Supp.2d 702, 721, judgment affirmed340 F.3d 144 (3d Cir.2003).

E.D.Pa.1992. Cit. in disc. as §§ 766-768. A vendor of battery power systems, formed by its competitor's former employees, suedthe competitor, alleging misappropriation of trade secrets and RICO violations. Competitor counterclaimed alleging piracy andtortious interference with prospective business relations, inter alia. This court granted in part and denied in part plaintiff's motionto dismiss the counterclaim, holding, inter alia, that, although Pennsylvania did not recognize a specific cause of action named“piracy,” Pennsylvania did recognize the tort of interference with contractual relations. The court determined that defendanthad sufficiently pled that plaintiff's hiring of its employees was willfully calculated to cause damage to its business. AdvancedPower Systems v. Hi-Tech Systems, 801 F.Supp. 1450, 1460.

E.D.Pa.1988. Cit. and quot. in sup., cit. in ftn., subsecs. (1), (1)(a)-(1)(d) cit. in sup. A life insurance agent sued an insurancecompany for defamation; the company filed a third-party complaint against the agent's employer for intentional interference















with business relations, alleging that the agent had a pattern of inducing the plaintiff's policy holders to cash in their policiesto purchase burial grounds and alternative insurance from him. The court denied the motion of the agent and his employerfor summary judgment on the third-party complaint. The court stated that where two parties competed for a third person'sbusiness, inducing the third person to terminate an existing contract at will was not improper as long as the inducing partydid not employ wrongful means or unlawfully restrain trade. The court found, however, that this competition privilege did notapply to the agent's employer, who was in the business of selling burial plots, and therefore was not in competition with theinsurance company; the agent's actions would consequently be measured by higher standards. Pino v. Prudential Ins. Co. ofAmerica, 689 F.Supp. 1358, 1362, 1363.

E.D.Pa.1986. Cit. in disc., cit. in ftn. A corporation sued several companies and individuals under theories of wrongful use oftrade secrets, breach of contract, and interference with contract or prospective contractual relationships, inter alia, alleging thatthe defendants misappropriated and wrongfully used the plaintiff's proprietary information to establish a competitive business.The court granted in part and denied in part the defendants' motion for summary judgment, holding that issues of material factexisted as to every claim; the court also dismissed the suits against two of the defendants. The court stated that issues existedas to whether the defendants were able to induce the plaintiff's customers into contracts with them by misappropriating tradesecrets, thus precluding summary judgment on the interference with contracts or prospective contractual relationships claims.SI Handling Systems, Inc. v. Heisley, 658 F.Supp. 362, 374, 375.

M.D.Pa.

M.D.Pa.2014. Cit. in case cit.in sup. (general cite). Corporation brought action against competitor and former employee,alleging numerous claims, including tortious interference with contractual relationships. Denying in part defendants' motions todismiss, this court held, inter alia, that defendants were precluded from asserting the fair-competition privilege. The court notedthat Pennsylvania followed Restatement Second of Torts § 768 in recognizing that competitors, in certain circumstances, wereprivileged in the course of competition to interfere with others' prospective contractual relationships. The court neverthelessdetermined that, here, plaintiff's allegations, if true, went beyond fair competition and were actionable in tort. Advanced FluidSystems, Inc. v. Huber, 28 F.Supp.3d 306, 338.

M.D.Pa.2010. Quot. in sup. Business that purchased delinquent tax liens from municipalities and school districts suedcompetitor, alleging that defendant used false and misleading advertising to unfairly compete against it. Denying summaryjudgment for defendant on plaintiff's claim for tortious interference with prospective contractual relations, this court rejecteddefendant's argument that its conduct was protected by the “competitor's privilege”; assuming that plaintiff could adducetestimony as to the falsity of defendant's marketing statements, plaintiff could maintain a claim of commercial disparagement,and, in such a case, defendant would have utilized “wrongful means,” meaning that its competitor's privilege would beeviscerated. Municipal Revenue Service, Inc. v. Xspand, Inc., 700 F.Supp.2d 692, 709-710.

M.D.Pa.2006. Quot. in case quot. in sup. Automobile-glass-replacement business brought, in part, a claim for tortiousinterference with business relations against administrator of automobile-glass-replacement program for insurers. Granting inpart and denying in part defendant's motion for summary judgment, this court held, inter alia, that scripted statements bydefendant's customer-service representatives to policyholders were truthful and could not serve as a basis for plaintiff's claim,and plaintiff had no business relationship with those customers who merely called defendant and expressed a preference forplaintiff; however, a genuine issue of material fact precluding summary judgment existed as to whether defendant used tacticsother than the scripts to interfere with plaintiff's potential business relationship with policyholders who had already scheduledappointments with plaintiff. Diamond Triumph Auto Glass, Inc. v. Safelite Glass Corp., 441 F.Supp.2d 695, 715.

W.D.Pa.

W.D.Pa.2013. Adopted in case cit. in sup., quot. in sup.; com. (e) quot. in sup. Supplier brought a breach-of-contract actionagainst manufacturer with which it purportedly had an exclusive supply agreement; manufacturer counterclaimed for, inter










alia, tortious interference with prospective contractual relations and fraud, alleging that supplier fraudulently overcharged it forcertain products and interfered with its business relationship with supplier's competitor. Denying supplier's motion for summaryjudgment as to the tortious-interference counterclaim, this court held, among other things, that questions of material fact existedas to whether supplier's purported acts of interfering with manufacturer's prospective business relations were protected by thebusiness-competition privilege. The court explained that if a party used wrongful means in interfering with another's businessrelation, it could not avail itself of the business privilege, and, here, wrongful conduct formed the crux of the allegations inmanufacturer's counterclaim. Bral Corp. v. Johnstown America Corp., 919 F.Supp.2d 599, 615.

W.D.Pa.1982. Quot. in disc. cit. but dist. The plaintiff corporation, a resident of Pennsylvania, brought a diversity action againstthe defendant corporation and two of its principals, alleging that the defendants had intentionally interfered with a prospectiveeconomic relation of the plaintiff's. The individual defendants moved to dismiss the action against them for lack of personaljurisdiction and for failure to state a claim upon which relief could be granted. The defendants urged that their actions, whichresulted in the plaintiff's previous buyer contracting with a third party, were privileged because the defendants were competitorsof the plaintiff corporation. The plaintiff amended its complaint and the court determined that the amended pleading establisheda valid cause of action, as the defendants intentionally interfered with an ongoing contractual relationship, knowing that theinterference would injure the plaintiff. The court found that the defendants, acting as middle men in the contracting process, werenot direct competitors of the plaintiff; thus the defendants' actions were not privileged. The court further determined that as thedefendants' conduct was intentional, it was clearly foreseeable that their actions would have a direct impact in the plaintiff's stateof residence, and the exercise of jurisdiction was appropriate. Techno Corp. v. Dahl Associates, Inc., 535 F.Supp. 303, 306, 307.

W.D.Pa.1981. Subsec. (1)(b) cit. in disc. The holder of a trademark brought an action against the defendant claiming that useby the defendant of the mark and the name “KRUPP-KOPPERS” in the United States infringed upon its rights under its federalservice mark and trademark registrations of “KOPPERS,” that the use of such mark and name was a false representation oforigin and the quality of the defendant's services, and that such use constituted unfair competition and was wrongful dilution ofthe plaintiff's distinctive mark and name in violation of the antidilution laws of various states. The court held that the defendantwould be enjoined from using the mark or name in the United States, in view of the fact that the plaintiff owned trademarkregistrations and service mark registrations for “KOPPERS” and had a reasonable probability of success of proving that, throughextensive use, “KOPPERS” possessed a secondary meaning at the time the defendant commenced use of “KRUPP-KOPPERS”in the United States. Accordingly, injunctive relief was granted. The plaintiff also sought to enjoin the defendant from tortiousinterference with its prospective contractual relations. The court stated that, under Pennsylvania law, which follows Section766 of the Restatement of Torts, a prima facie case of tortious interference with prospective contractual relations requires aprospective contractual relation between a third party and the plaintiff, a purpose or intent to harm the plaintiff by preventing therelationship from occurring, the absence of a privilege or justification on the part of the defendant, and the occurrence of actualharm or damage to the plaintiff as a result of the defendant's conduct. The court found that the evidence of a final agreementwhich could not interfere with the plaintiff's prospective contractual relationships and a magazine article not necessarily withinthe defendant's control, did not show irreparable harm so as to justify the grant of injunctive relief from tortious interferencewith prospective contractual relations. Koppers Co., Inc. v. Krupp-Koppers, 517 F.Supp. 836, 852.

W.D.Pa.Bkrtcy.Ct.

W.D.Pa.Bkrtcy.Ct.2017. Cit. and quot. in sup.; com. (b) cit. in ftn. Chapter 11 debtor that operated an information-technology-staffing company brought an adversary proceeding against former client and competitors, alleging that defendants tortiouslyinterfered with the contractual relationship between plaintiff and its employees who were deployed at client's offices. Grantingin part defendants' motion for summary judgment, this court held that plaintiff failed to state a tortious-interference claim againstcompetitors, because the competitors' alleged conduct occurred after client informed competitors that it had decided not to renewits contracts with plaintiff and that it would award the contracts to competitors instead. The court reasoned that competitors'actions appeared to fall within the acceptable range of conduct for companies in the same business under Restatement Secondof Torts § 768. In re Prithvi Catalytic, Inc., 571 B.R. 105, 125.







E.D.Tenn.

E.D.Tenn.2018. Com. (b) quot. in disc. Refractory contractor sought a temporary restraining order and preliminary injunctionagainst former employees and competing corporation that employees had established, alleging that defendants used plaintiff'sproprietary information to underbid plaintiff and solicit its customers, employees, and vendors. This court held, inter alia,that plaintiff met its burden of demonstrating a likelihood of success on its claims of intentional interference with businessrelationships and breach of duty of loyalty. The court quoted Restatement Second of Torts § 768, Comment b, to explain thatentering a competitive market and competing with existing players was not enough to constitute improper means for purposes ofa claim of intentional interference with business relationships, and determined that plaintiff demonstrated the requisite elementsby providing evidence that defendants took confidential information to use against plaintiff in competitive bidding. F.S. SperryCo., Inc. v. Schopmann, 304 F.Supp.3d 694, 706.

M.D.Tenn.

M.D.Tenn.1980. Cit. in ftn., com. (e) quot. in part in disc. and com. (i) cit. in disc. A buyer corporation purchased a divisioncompany of a seller corporation and, as part of the terms of the sale, the seller agreed to fire and not rehire any of the division'smanagerial employees who refused to work with the buyer. The buyer insisted on this covenant in order to secure trainedemployees to that the change in ownership would not disrupt the ongoing business. The plaintiffs, former divisional managers,refused employment with the new owner and, when they were denied employment with the seller corporation, sued bothcorporations. The plaintiffs argued, inter alia, that the covenant violated state law because the agreement tortiously interferedwith the plaintiffs' existing and prospective employment opportunities. The court noted that because this case involved a multi-state tort, the state law which would be applied would be the law of the state where the plaintiffs reside. The court statedthat the tort of interference with contractual relations was not fully developed and therefore courts must balance the partiesprospective interests against one another. The court stated that employees have no legal right to continued employment butonly an expectation of employment. However, the buyer corporation had a legal right to negotiate the sale without fear of tortliability. Moreover, the court found that the buyer was not motivated in its acts with an intent to injure the plaintiffs. The courtheld that the buyer's interest in purchasing the company and securing the former managers' services outweighed the plaintiffs'interests in their existing employment with the seller corporation. Therefore, the buyer's alleged tortious conduct of inducingthe seller to fire the plaintiffs was privileged conduct. The court characterized the plaintiffs' alleged tort of interference withemployment opportunities as interference with prospective contractual relations. The court stated that generally the plaintiffs'interest in prospective contractual relations receives a lesser degree of protection than that provided for existing contractualrelations. The court found that generally such interference is privileged if the interfering party is acting to promote its owneconomic interest without resort to wrongful means. The court held that because the buyer was acting to further its economicinterest, the buyer was privileged to induce the seller not to rehire the plaintiffs. The court entered a judgment for the defendants.Cesnik v. Chrysler Corp., 490 F.Supp. 859, 870, 873.

S.D.Tex.

S.D.Tex.1998. Quot. in ftn., subsec. (1)(b) and com. (e) cit. in ftn., subsec. (2) and com. (i) cit. in case cit. in disc. Temporaryservice agencies brought a state court suit against a competitor, alleging tortious interference with and conspiracy to tortiouslyinterfere with their contractual relationships with employees. Upon removal, this court granted defendant summary judgment,holding, inter alia, that, as plaintiffs' competitor, defendant was privileged in causing at-will employees to terminate theirbusiness relationship with plaintiffs. The court stated that a third party's efforts to induce another to exercise his rights to dissolvean at-will contract did not constitute tortious interference with a contract, under Texas law. Kadco Contract Design Corp. v.Kelly Services, Inc., 38 F.Supp.2d 489, 495.

S.D.Tex.1992. Com. (i) cit. in case quot. in sup. A hospital radiologist sued his employer and other physicians for, inter alia,tortious interference with contract after the radiologist's employment agreement with the hospital was terminated without cause.








Granting defendant's motion for summary judgment as to this claim, this court held, in part, that there was no tortious interferencewith contract because, according to the termination and notice provisions of the agreement, plaintiff retained only a prospectivecontractual relation for which he had no assurance, only an expectancy, under a contract terminable at will. The court alsoconcluded that defendants' conduct was privileged because the owner of the hospital, and the physicians associated with it, hadthe right to control hospital practices through its contracts, where the hospital owner clearly had a superior interest in the mannerin which the hospital was operated. Jackson v. Radcliffe, 795 F.Supp. 197, 208-209.

D.Utah

D.Utah, 2005. Coms. (d) and (g) quot. in disc. Physician and physician's assistant brought various state and federal claimsagainst county, county-health-services district that operated medical facilities in which they worked, and others, alleging, amongother things, that defendants deferred or interfered with their practice privileges. This court declined to exercise supplementaljurisdiction over plaintiffs' claims for interference with contract and prospective business relations and dismissed those claimswithout prejudice. The court observed that a competitor's interference with a prospective contractual relation was not improperif, among other things, his purpose was at least in part to advance his interest in competing with the other. MacArthur v. SanJuan County, 416 F.Supp.2d 1098, 1183, on remand 391 F.Supp.2d 895 (2005).

D.Vt.

D.Vt.2014. Cit. in case quot. in sup. Exclusive sales representative under an agreement with U.S. subsidiary of Germanmanufacturer brought, inter alia, a claim for tortious interference with contract against manufacturer and its German subsidiary,alleging that defendants tortiously interfered with the agreement by selling products directly into plaintiff's sales territory withoutits notice or involvement. While denying defendants' motion to dismiss plaintiff's tortious-interference claim on other grounds,this court held that that claim could not be sustained on the basis of defendants' purported direct sales of products into theterritory, because the agreement did not proscribe such sales, and, thus, the sales themselves were not even a breach of theagreement, much less tortious. The court cited Restatement Second of Torts § 768 in noting that competitive business practiceswere not tortious. One Source Environmental, LLC v. M + W Zander, Inc., 13 F.Supp.3d 350, 366.

S.D.W.Va.

S.D.W.Va.2008. Cit. and quot. in sup., cit. in case quot. in sup., subsecs. (1)(a)-(1)(d) cit. in sup. Former sales representativethat had been replaced by a competitor as distributor of manufacturer's products sued competitor and competitor's president/sole owner for tortiously interfering with its contract with manufacturer. Granting summary judgment for defendants, this courtheld, inter alia, that the affirmative defense of justification for purposes of competition was present. The court reasoned thatdefendants did not employ any wrongful means or create an unlawful restraint of trade by communicating with manufacturer,certain of the contacts at issue were initiated by manufacturer rather than by defendants, and all of the discussions were obviouslydone to compete with and ultimately replace plaintiff as manufacturer's representative. Cavcon, Inc. v. Endress + Hauser, Inc.,557 F.Supp.2d 706, 726, 727.

E.D.Wis.

E.D.Wis.2010. Com. (h) quot. in disc. Employer and employee sued competitor of employer that previously employedemployee, asserting a series of claims related to employee's employment agreement with defendant. Denying defendant's motionfor summary judgment on its counterclaim for tortious interference with prospective contractual relations, this court held, amongother things, that defendant had not demonstrated as a matter of law that plaintiffs' interference with its prospective contractualrelations was improper. The court noted, however, that, while competition was generally not an improper interference withprospective contractual relations, any interference on the part of plaintiffs was not per se justified by the mere fact of competition










alone, because employee and defendant were parties to an enforceable covenant not to compete. Thiesing v. Dentsply Intern.,Inc., 748 F.Supp.2d 932, 954.

E.D.Wis.1995. Cit. in disc., cit. in headnote and disc. as §§ 768-773. Toy distributor sued a sales representative company and itspresident for breach of fiduciary duty and for tortious interference with the distributor's contractual and prospective economicrelationship with a toy retailer. Defendants counterclaimed for unpaid commissions. This court granted in part and denied inpart plaintiff's motion for summary judgment, holding, inter alia, that defendants were liable for tortious interference with anexisting contractual relationship, because there was a current contractual relationship between plaintiff and the toy retailer, anddefendants intentionally interfered with that relationship by redirecting orders to another company. However, there was a factissue as to the causation and damages element in plaintiff's claim for damages resulting from defendants' interference with itsprospective economic relationships. Select Creations, Inc. v. Paliafito America, Inc., 911 F.Supp. 1130, 1135, 1159.

E.D.Wis.Bkrtcy.Ct.

E.D.Wis.Bkrtcy.Ct.1982. Cit. in ftn. A corporation which was a Chapter 11 debtor sought enforcement of its former president'scovenant not to compete and sought to recover against him for alleged interference with the corporation's protective servicecontracts with customers. On the tortious interference with contract issue, the court noted that one who intentionally andimproperly interfered with the performance of a contract between another and a third person by inducing or otherwise causingthe third person not to perform the contract, was subject to liability to the other for the pecuniary loss resulting to the otherfrom the failure of the third person to perform the contract. To recover for interference with contract under Wisconsin lawit was essential that the defendant act intentionally. To have the requisite intent, the defendant must act with a purpose tointerfere with the contract. Thus, if the actor did not have this purpose, his conduct did not subject him to liability underthis rule even if it had the unintended effect of deterring the third person from dealing with the other. Here, the court found,there was overwhelming evidence that the former president maliciously and fraudulently induced the customers to breach theirprotective service contracts with the corporation. Consequently, the former president was responsible for the profit lost by thoseconcessions. Matter of Central Watch, Inc., 22 B.R. 561, 571.

Ala.

Ala.2004. Quot. in disc., coms. (b) and (e) quot. in disc. Prospective purchaser of vending machines and customer accountsfrom vending-service company in default on security agreements sued snack-food manufacturer for intentional interferencewith business or contractual relations, claiming, in part, that defendant interfered with company's customer accounts whilerepossessing vending machines from company. Reversing the trial court's denial of summary judgment for defendant andremanding, this court held, inter alia, that competition between defendant and company for customers' business was toointerwoven with the lawful repossession process to constitute tortious interference with a business relation, and, alternatively,that the competitor's privilege applied because plaintiff did not produce substantial evidence that defendant used wrongful meansto secure the company's at-will customers' business. Tom's Foods, Inc. v. Carn, 896 So.2d 443, 457, 458.

Ala.1994. Cit. in headnotes, quot. in sup. and adopted, cit. in ftn., cit. in spec. conc. and diss. op., coms. (b) and (e) quot. indisc. Soap manufacturer sued competitor, alleging that competitor tortiously interfered with manufacturer's business relationswith its customers. Reversing the trial court's grant of summary judgment for defendant and remanding, this court held, interalia, that defendant's employees' affidavits and memorandums outlining a strategy to acquire as many of plaintiff's accountsas possible and remove $200,000 in business from plaintiff for the purpose of ruining plaintiff presented a jury question asto defendant's alleged tortious interference. The court also held that defendant could assert justification and the competitor'sprivilege as defenses. A justice concurring specially in part argued that the majority's interpretation of the competitor's privilegewas the equivalent of the justification defense and agreed that the issue of justification was for the jury to resolve. Soap Co.v. Ecolab, Inc., 646 So.2d 1366, 1367, 1369, 1370, 1372.











Ariz.App.

Ariz.App.2007. Cit. in sup. Neonatology practice group that contracted with insurance plans to provide neonatal services to theplans' members as an in-network provider sued another group whose neonatologists were out-of-network providers, alleging thatdefendant's practice of referring patients out-of-network to its own neonatologists rather than to plaintiff's physicians constitutedinterference with plaintiff's contractual relationship with the relevant plans. The trial court granted summary judgment fordefendant. Affirming, this court held, inter alia, that plaintiff failed to raise a material question of fact as to the propriety ofdefendant's motive for its self-referral practices; there was nothing improper, as plaintiff implicitly conceded, about referralsmotivated by legitimate medical judgment, and the Arizona courts had held that a business-driven motive, in and of itself, wasnot improper. Neonatology Associates, Ltd. v. Phoenix Perinatal Associates Inc., 216 Ariz. 185, 164 P.3d 691, 695.

Ariz.App.2005. Cit. in disc. Employer franchisee sued former employee for tortious interference with business relations, interalia. Trial court granted defendant summary judgment. This court affirmed, holding, inter alia, that plaintiff's interference-with-business-relations claim failed, because employee did not use improper means to interfere with plaintiff's contractualrelations with her customers by calling customers on list he had received from plaintiff. At most, the record reflected a businessexpectation plaintiff might have had that customers would return from year to year, rather than any formal contract with them.Miller v. Hehlen, 209 Ariz. 462, 104 P.3d 193, 202.

Ariz.App.2001. Subsec. (1)(d) cit. in disc. After resigning from medical center clinic, oncologist sued both the medicalmanagement company that purchased clinic and company's president, alleging tortious interference with prospective advantage.Trial court dismissed plaintiff's claim, but appellate court vacated, holding that plaintiff's claims were not preempted by NationalLabor Relations Act. Granting defendants' motion for reconsideration, the court held, inter alia, that two of plaintiff's claimsdid not implicate the Act so as to require preemption, since claims could be adjudicated without deciding whether defendantscommitted an unfair labor practice. Plaintiff asserted that president's motive for interfering with plaintiff's business expectancieswas to preserve defendants' financial positions, and that his conduct was independent of any conduct covered by Act. Hill v.Peterson, 201 Ariz. 363, 35 P.3d 417, 420.

Ariz.App.1988. Subsec. (1)(d) and coms. (b) and (g) cit. in disc. A cattle ranch operator leased grazing land from a landcompany; the lease reserved to the lessor the right to sell the land and to cancel the lease on 30 days' notice. After an adjoiningrancher purchased the leased property, the vendor gave notice of the lease cancellation to the lessee. The lessee sued the purchaserand the vendor, alleging that the purchaser had fraudulently induced the sale and that the vendor breached the lease because thelessee had an implied right of first refusal. The trial court granted the defendants' motions for summary judgment. Affirming,this court held that there was no evidence that the purchaser had acted improperly or with an improper motive to cause a breachof the lease, or that he wrongfully interfered with the plaintiff's business relationships or contractual rights. The court examinedthe purchaser's conduct and motive and found no evidence that he acted illegally or inequitably; therefore summary judgmentwas properly granted. Bar J Bar Cattle Co., Inc. v. Pace, 158 Ariz. 481, 763 P.2d 545, 548, 549.

Ariz.App.1986. Com. (i) quot. in sup. An employer sued a former employee's new employer for inducing the employee intobreaching a covenant not to compete. The trial court granted summary judgment for the defendant. Reversing, this court heldthat the plaintiff employer had sufficiently stated a cause for action for intentional interference with a contract to precludesummary judgment. The court noted that although one who induces another party to breach a contract that is terminable at-will has a complete defense to intentional interference with contract, the complaint at issue alleged that the new employer hadinduced the employee to break the restrictive covenant, not the at-will employment relationship. Mattison v. Johnston, 152 Ariz.109, 730 P.2d 286, 291.

Ark.

Ark.1984. Quot. in disc. A supplier of paneling sued a subcontractor on a school construction project for unfair interference witha business expectancy. Plaintiff alleged that defendant concealed the fact that it was competing against him, used knowledge










of plaintiff's prices to underbid him, and submitted misleading estimates to the architects, resulting in termination of plaintiff'sexpectancy. Defendant appealed a jury verdict for plaintiff, asserting that any interference which occurred was privilegedbecause no conduct on its part amounted to wrongful or improper competition, since submission of a lower bid saved the schooldistrict money. This court observed that although conduct was less likely to be considered improper if it advanced a socialinterest, there was no privilege for self-enrichment by devious means. It then affirmed the trial court's refusal to grant a directedverdict, finding substantial evidence from which a jury could conclude that defendant's efforts were directed toward unfairevasion of competition. Kinco, Inc. v. Schueck Steel, Inc., 283 Ark. 72, 671 S.W.2d 178, 181-182.

Ark.App.

Ark.App.2018. Quot. in case cit. in sup. In lender's foreclosure and replevin proceedings against borrowers that defaultedon operating and equipment loans for their farm businesses, borrowers counterclaimed, alleging, among other things, thatdefendants interfered with their right to market their crops by forcing them, as a condition of obtaining the loans, to enter intocontracts with a buyer to sell a specific amount of crops at a predetermined price in advance of planting. The trial court enteredjudgment on a jury verdict for borrowers on their counterclaims. Reversing in part, this court held that borrowers failed to provethat there was a termination or breach of their relationship with the buyer, or that lender used improper means to achieve thatresult, as required to state a tortious-interference claim. The court noted that, under Restatement Second of Torts § 768, so longas a defendant did not employ improper means, a defendant's own economic interest provided sufficient justification for analleged tortious interference. Farm Credit Midsouth, PCA v. Bollinger, 548 S.W.3d 164, 173.

Ark.App.2010. Quot. in case quot. in sup. Provider of mental-health services for residential-care facilities sued facilities andprovider of Medicaid billing services, alleging tortious interference with contract and other claims in connection with allegationsthat defendants conspired to force plaintiff out of business. The trial court granted summary judgment for defendants. Affirmingthe dismissal of plaintiff's claim for tortious interference with contract, this court held that defendants did not act improperlyby being motivated in part by "greed" or a desire for profits, by engaging in secret negotiations for the sale of facilities and forother contracts without informing plaintiff, or by recruiting plaintiff's employees. West Memphis Adolescent Residential, LLCv. Compton, 2010 Ark.App. 450, 374 S.W.3d 922, 927-928.

Cal.

Cal.2020. Com. (i) cit. in sup., quot. in case quot. in sup. Biotechnology company sued competitor, alleging that defendanttortiously interfered with an at-will contract entered into between plaintiff and business partner by entering into a settlementagreement with business partner that prohibited business partner from, among other things, engaging with plaintiff to developcertain drugs. The district court granted defendant's motion to dismiss, and the court of appeals certified questions to this court.This court answered the certified questions, holding, inter alia, that, in order to state a claim for tortious interference with anat-will contract, plaintiff was required to demonstrate that defendant committed an independent wrongful act. The court citedRestatement Second of Torts § 768 in reasoning that an at-will agreement did not provide legal assurance of future benefits, andthus required plaintiff to show that defendant committed an independent wrong that made its competitive behavior improper.Ixchel Pharma, LLC v. Biogen, Inc., 470 P.3d 571, 578, 579.

Cal.2004. Com. (i) quot. in sup. Law firm and its partners sued its former lawyer-employees and their new law firm forintentional interference with contractual relationships, alleging that defendants persuaded plaintiffs' employees to join theirfirm and solicited plaintiffs' clients to fire plaintiffs and to hire defendants. Trial court entered judgment on jury verdict forplaintiffs. Court of appeals affirmed in part. This court affirmed, holding that plaintiff could recover damages for intentionalinterference with at-will employment relation under same standard as that for intentional interference with prospective economicadvantage. Plaintiff had to prove that defendant did an independently wrongful act that induced at-will employees to leaveplaintiff. Here, defendants did not simply extend job offers to plaintiffs' at-will employees; they purposely engaged in unlawfulacts that crippled plaintiffs' firm and caused plaintiffs' personnel to terminate their contracts. Reeves v. Hanlon, 33 Cal.4th 1140,1151, 17 Cal.Rptr.3d 289, 296, 95 P.3d 513, 519.










Cal.2003. Com. (a) quot. in conc. and diss. op., com. (c) quot. in ftn. and in conc. and diss. op., com. (f) quot. in ftn. Broker forunsuccessful bidder on military equipment contract with Republic of Korea brought suit for, in part, intentional interference withprospective economic advantage against successful bidder, after plaintiff discovered that defendant had obtained the contract bybribing key Korean officials. The trial court dismissed the action, but the court of appeal reversed. Affirming in part, this courtheld that, to state a claim for interference with prospective business advantage, plaintiff did not have to plead that defendant actedwith specific intent to interfere with plaintiff's business expectancy. Concurring and dissenting opinion argued that a plaintiffwhose alleged injury only indirectly and remotely followed from defendant's interference with prospective economic advantageof some third party could not maintain action for intentional interference with prospective economic advantage. Korea SupplyCo. v. Lockheed Martin Corp., 29 Cal.4th 1134, 1163, 1167, 1185, 131 Cal.Rptr.2d 29, 53, 57, 71, 63 P.3d 937, 957, 960, 972.

Cal.1995. Cit. in disc. §§ 768-771. Automobile distributor whose retailers became unable to sell cars to him because of pressurefrom the automobile manufacturer sued manufacturer for, inter alia, tortious interference with business relations. The trial courtentered judgment on a jury verdict for defendant after instructing the jury that plaintiff had to prove defendant's interference wasindependently wrongful. The intermediate appellate court found the instruction prejudicially erroneous and reversed. Reversingand remanding, this court held that plaintiff was obligated to show independently wrongful conduct beyond the mere fact ofdefendant's interference. The court's decision was consistent with the Restatement, Second, of Torts, a reformulation of theoriginal Restatement, which was frequently criticized for the unequal burdens it assigned to the tort's proof and defenses. DellaPenna v. Toyota Motor Sales, U.S.A., 11 Cal.4th 376, 45 Cal.Rptr.2d 436, 442, 902 P.2d 740, 746.

Cal.App.

Cal.App.2003. Cit. in disc. Law firm sued former lawyer-employees for improperly persuading its at-will employees to joindefendants' newly formed professional corporation, alleging, in part, intentional interference with contractual relationships.Affirming in part the trial court's entry of judgment for plaintiff, this court held, inter alia, that an employer could recover forinterference with the employment contracts of its at-will employees by a third party when the third party did not show that itsconduct in hiring the employees was justifiable or legitimate. Reeves v. Hanlon, 130 Cal.Rptr.2d 793, 800, review granted andopinion superseded 135 Cal.Rptr.2d 63, 69 P.3d 979 (2003).

Cal.App.1995. Cit. in headnotes, quot. in sup., cit. in disc., subsecs. (1)(b) and (2) cit. in disc., com. (e) cit. in sup. and cit. in ftn.Developer that hoped to lease its warehouse space to a trade show association sued consortium from which association ultimatelyrented space for, inter alia, intentional interference with prospective economic advantage. The jury determined that consortium'sinterference was both intentional and unprivileged, and returned a verdict awarding developer $6 million in compensatoryand punitive damages. The trial court granted consortium's motion for judgment n.o.v. with respect to the punitive damagesonly. Affirming in part and reversing in part, this court held that consortium, as developer's business rival, was privileged tointerfere in developer's prospective economic advantage where, as here, it did not engage in illegality, unfair competition, orother independently actionable tortious conduct. San Francisco Design Center v. Portman, 41 Cal.App.4th 29, 50 Cal.Rptr. 2d716, 716, 717, 722, 723, review dismissed, remanded and ordered published 50 Cal.Rptr.2d 698, 911 P.2d 1373 (Cal.1996).

Cal.App.1995. Cit. in headnotes, cit. generally in sup., quot. in sup., subsec. (2) cit. in disc., com. (e) cit. in disc. and cit.in ftn. Developer sued another developer, among others, alleging that defendant's attempts to lure third developer into doingbusiness with it instead of with plaintiff constituted tortious interference with prospective economic advantage. The trial courtentered judgment on a jury verdict for plaintiff but this court reversed, holding that plaintiff had failed to defeat defendant'sdefense of competitive privilege in that it had not shown that defendant's wrongful actions were unlawful or illegitimate. Thecourt explained that only an independently actionable tort, such as fraud or unfair competition, conduct exceeding the levelof mere dirty tricks, would defeat the competitive privilege defense. San Francisco Design Center v. Portman, 36 Cal.App.4th 892, 38 Cal.Rptr.2d 270, 271, 276-278, review dismissed, remanded and ordered published 50 Cal.Rptr.2d 698, 911 P.2d1373 (Cal.1996).

















Cal.App.1994. Subsec. (1) cit. in headnote and in sup. Certified shorthand reporters sued group of certified shorthand reportersand two insurance companies for, inter alia, interference with prospective economic advantage, based on the practice of directcontracting, under which the group contracted with the insurance companies to have exclusive right to report depositions takenby attorneys representing those companies. The trial court sustained demurrers to all causes of action without leave to amend.This court issued a peremptory writ of mandate ordering the trial court to overrule the demurrers, holding, inter alia, that themere fact that the complaint alleged that the group was plaintiffs' competitor did not give rise to an absolute privilege on thegroup's part to interfere with plaintiffs' prospective economic advantage; competitive privilege was an affirmative defense thatcould be defeated if defendants engaged in unlawful or illegitimate means. Saunders v. Superior Court, 27 Cal.App.4th 832,843, 33 Cal.Rptr.2d 438, 439, 444.

Cal.App.1985. Quot. in ftn. A corporation sued its former president for breach of a noninterference agreement after he inducedother employees to work for his new employer. The trial court granted a judgment of nonsuit, finding the agreement void asan unlawful restraint of trade under the state's business and professions code. The court of appeal reversed and remanded fortrial, holding that the agreement was not void on its face because it had no overall negative impact on trade or business. Notingthat reasonably limited restrictions tending more to promote than restrain trade did not violate the statute, the court found thatdefendant's agreement not to interfere with his former employer by “raiding” its employees did not appear to be any more of asignificant restraint on his engaging in his profession than a restraint on solicitation of customers or on disclosure of confidentialinformation. Loral Corp. v. Moyes, 174 Cal.App.3d 268, 219 Cal.Rptr. 836, 842.

Cal.App.1983. Quot. in part in disc. A coin dealer who had executed an agreement with a coin collector's estate to purchase thedecedent's collection brought an action against other prospective buyers who submitted bids. The plaintiff alleged intentionalinterference with a contractual relationship and with an advantageous business relationship on the ground that the defendants'actions influenced the probate court to declare the plaintiff's agreement void ab initio and to order a public sale of the collection.As a result, the plaintiff paid a price which far exceeded the contract price. Judgment for the defendants was affirmed on appeal.The appeals court concluded that since the agreement was void from its inception, it could not support an action for tortiousinterference with a contractual relationship. Nor, for the same reason, could liability be imposed for improper interferencewith the plaintiff's prospective economic advantage. Even had the contract been enforceable, the defendants' actions were notimproper and, moreover, came within the privilege of competition. A-Mark Coin Co. v. General Mills, Inc., 148 Cal.App.3d312, 195 Cal.Rptr. 859, 867.

Colo.

Colo.1995. Quot. and cit. in sup., subsec. (1)(b) cit. in sup., and cit. in case quot. in ftn., com. (a) quot. in disc., cit. in sup.,com. (e) quot. in disc. and sup. Service station dealers who were also lessees of oil company sued oil company for breach ofthe implied covenant of good faith and fair dealing and tortious interference with prospective business relations. The trial courtentered judgment on a jury verdict awarding dealers $2.5 million and the intermediate appellate court affirmed. Affirming inpart, reversing in part, and remanding, this court held that oil company, which, by contract, retained discretion to modify dealers'rent, breached its duty of good faith by double-charging them for their service bays. However, oil company did not tortiouslyinterfere with dealers' prospective customer relations when it diverted business to its own competing, company-run stations, asit did not do so by wrongful or predatory means. Concurring and dissenting opinion found the issue of oil company's good faithirrelevant, since the lease agreements gave it absolute discretion to modify the rental terms and expressly and unambiguouslybarred implied covenants. Amoco Oil v. Ervin, 908 P.2d 493, 501, 501-502, 502, 503.

Colo.1989. Cit. in ftn., cit. in disc. An employee of an air courier service who became dissatisfied with the commissions he wasreceiving from his employer formed his own air courier service, relying on his relationships with his employer's clients and hisco-workers. In a consolidated action, the employee sued his employer for the unpaid commissions and the employer sued theemployee for breach of the duty of loyalty. The trial court held, inter alia, that the employee was entitled to the commissionsand that he did not violate the fiduciary duty of loyalty to his former employer. Reversing, this court remanded for a retrial todetermine whether the employee breached his fiduciary duty of loyalty not to compete with his employer. The court said that









by virtue of the agency relationship, the duty of loyalty placed on the agent was necessarily greater than the duty imposed onall persons by tort law to refrain from wrongful interference with contract relations in soliciting co-employees to leave theiremploy. Jet Courier Service, Inc. v. Mulei, 771 P.2d 486, 496.

Colo.1984. Quot. in sup., com. (i) quot. in sup. The plaintiff and the defendant sold pre-need funeral plans. After the defendantsolicited termination by the plaintiff's customers and resold their plan, the plaintiff alleged intentional interference with acontract. The trial court found for the defendant, since the plaintiff's agreements were terminable at will. The intermediateappellate court affirmed. This court reversed and remanded. It held that the plaintiff's agreements were not terminable at willbecause of a liquidated damages cancellation clause and that the defendant's acts were not justified business competition.Memorial Gardens v. Olympian Sales & Manage., 690 P.2d 207, 210-212.

Colo.App.

Colo.App.2012. Quot. in case cit. in sup., subsec. (1) quot. in sup. Seller of rare and modern coins, which had enteredinto a referral agreement with coin grader in which it sent all of its coin-grading work from a major customer to grader inexchange for a referral fee, sued grader's competitor, alleging, among other things, that competitor intentionally interfered withgrader's performance of the agreement by hiring away most of grader's employees. The trial court granted summary judgmentfor defendant on plaintiff's claim for intentional interference with contractual relations. Reversing and remanding, this courtheld, among other things, that plaintiff preliminarily demonstrated that defendant's conduct was wrongful. Given the evidencepresented, a reasonable jury could conclude that defendant's principals wrongfully used confidential information they acquiredabout the pricing structure of the referral agreement through breach of their confidentiality agreements with grader, particularlyin light of a memorandum in which one of defendant's principals indicated that defendant's intent in hiring away grader'semployees was to leave it "worthless and immediately unable to function" and "out of business in weeks, if not sooner." SlaterNumismatics, LLC v. Driving Force, LLC, 2012 COA 103, 310 P.3d 185, 195.

Colo.App.2009. Cit. and quot. in sup., com. (b) quot. in sup., com. (e) cit. and quot. in sup. and cit. in cases quot. in sup. Formeremployer sued former employees and their new consulting business, alleging that defendants intentionally interfered withplaintiff's contracts and prospective business relationships with clients and other employees. The trial court entered judgmenton a jury verdict for plaintiff on the intentional-interference-with-contract claim, inter alia. Affirming as to this claim, this courtheld that the trial court's error in instructing the jury on the loss of the business-competition privilege was not prejudicial;although the instruction was circular and included wrongful means for which there was no evidence, those types of wrongfulmeans were merely examples, and thus were not the only wrongful means at issue. Harris Group, Inc. v. Robinson, 209 P.3d1188, 1196-1198.

Colo.App.2004. Cit. in sup. Buyer of seller's partnership interest in a company that developed television programs basedon newspaper classified ads sued seller for, in part, tortiously interfering with plaintiff's prospective business relationship inSacramento. Trial court entered judgment on jury verdict for plaintiff. This court affirmed in part, holding, inter alia, that theevidence was sufficient to support jury's verdict on plaintiff's tortious-interference claim because plaintiff was not required toshow that defendant induced Sacramento newspaper to abandon its business relationship with plaintiff, and defendant's threatsof litigation caused newspaper to abandon any effort to enter into an otherwise imminent contract with plaintiff. EmploymentTelevision Enterprises, LLC v. Barocas, 100 P.3d 37, 46.

Colo.App.2002. Cit. in disc., cit. in case cit. in disc. Host home provider who cared for two developmentally disabled adultsbrought suit for intentional interference with contractual relations and intentional interference with prospective economicadvantage against service agency and community-centered board, after defendant board terminated funding of plaintiff's contractwith another service agency to provide care for the disabled adults, and defendant agency removed the adults from plaintiff'shome. The trial court denied defendants' motions for directed verdicts, and entered judgment on a jury verdict for plaintiff.Affirming, this court held that defendants did not have an absolute statutory or contractual right to interfere with plaintiff's











contract; whether defendants acted reasonably in denying funding and removing adults, and whether they employed wrongfulmeans in interfering with plaintiff's contract were jury questions. Omedelena v. Denver Options, Inc., 60 P.3d 717, 721, 725, 726.

Colo.App.1999. Cit. in case cit. in disc. §§ 766-768. Real estate agents sued a listing agent and a buyer, seeking a commissionfrom the sale of a condominium unit and asserting claims for tortious interference with contract and civil conspiracy. Trialcourt awarded the commission, but denied plaintiffs' request for damages for tortious-interference and conspiracy. This courtaffirmed, holding, inter alia, that plaintiffs' tortious-interference claim failed, because the potential buyer, who had becomedissatisfied with plaintiff agent, was entitled to work with any real estate professional he chose, and the required element ofintentional inducement had not been proven. Telluride Real Estate v. Penthouse Affiliates, 996 P.2d 151, 155.

Colo.App.1994. Cit. in disc. Former and current service station dealers who had lease and supply agreements with oil companysued oil company for tortious interference with customer relationships, among other claims, alleging that defendant intentionallyincreased plaintiffs' costs and sold products at defendant's company-operated stations below what they could profitably match.This court affirmed the trial court's entry of judgment on jury verdict for plaintiffs, holding that plaintiffs had established primafacie case of tortious interference with prospective business relationships, that the court properly left for jury determinationwhether that interference was improper, and that evidence of plaintiffs' decline in gasoline sales was enough to sustain findingof improper interference. Ervin v. Amoco Oil Co., 885 P.2d 246, 254, affirmed in part, reversed in part 908 P.2d 493 (1995).See above case.

Colo.App.1991. Cit. and quot. in disc. A hospital denied a physician staff privileges to perform cardiovascular surgery atthe hospital, because it had an exclusive contract with another physician which granted him the exclusive right to performcardiovascular surgery at the hospital. The physician sued the hospital, the city that owned it, its executive director, its boardof trustees, and the other physician for outrageous conduct and tortious interference with his profession. The trial court grantedthe defendants' motions for summary judgment. Affirming, this court held, inter alia, that the trial court did not err in enteringsummary judgment on the tortious-interference claim because the hospital did not employ wrongful means in refusing to granthim privileges, in that the contract was valid and the hospital did not violate its bylaws or the pertinent federal regulations. Italso noted that the physician had not demonstrated the existence of a contractual relationship with any third party at the timehe sought staff privileges. Hutton v. Memorial Hosp., 824 P.2d 61, 64-65.

Colo.App.1989. Subsec. (1)(b) cit. in sup. A subcontractor, who had been brought in to repair used vehicles for an auctioncompany, eventually submitted a bid for the auction contract and evicted the auction company from the property. The auctioncompany sued the subcontractor for breach of contract, business interference, fraud, and unjust enrichment arising from a jointventure. After a jury awarded damages to the plaintiff on all counts plus punitive damages, the trial court set aside the punitivedamages award. Affirming in part, but reversing as to punitive damages, this court held, inter alia, that the breach of contractclaim was not barred by the Statute of Frauds and that the trial court properly denied the defendant's motion to dismiss the claimfor tortious interference with prospective business advantage. The court determined that the privilege extended to competitorsdid not apply where the defendant, as a joint venturer, employed “wrongful means” to surreptitiously act to acquire the subjectof the venture to the exclusion of the other. McCrea & Co. Auctioneers v. Dwyer Auto, 799 P.2d 394, 397.

Colo.App.1983. Cit. and quot. in disc., com. (e) cit. in disc. A seller of “preneed” burial contracts brought suit against thedefendant, a competitor, seeking damages for the defendant's alleged breach of contract and interference with a contractualrelationship. The defendant randomly contacted the customers who had preneed burial contracts with the plaintiff, advised themof the terms in which they could terminate that contract, and provided the forms for its termination. The trial court held that thecontract at issue was terminable at will, the business activities of the defendant were lawfully justified and did not constitutetortious interference with the plaintiff's contract, and the defendant's defense of lawful competition was appropriate to the case.On appeal, the plaintiffs contended that the business activities of the defendant were not lawfully justified. In view of the factthat the defendant did not make any false or derogatory statements about the plaintiffs and that the defendant employed onlyrandom telephone solicitation, this court affirmed, concluding that there was sufficient evidence to support the trial court's










finding that the business activities of the defendant were lawfully justified. Memorial Gardens, Inc. v. Olympian Sales, 661P.2d 296, 298-300, reversed 690 P.2d 207 (1984). See above case.

Colo.App.1982. Cit. in disc. The branch manager of the plaintiff corporation expressed his intention to open his owndistributorship and arranged a social gathering at his home with a number of co-workers, inviting them to join him. The defendantlater resigned from his employment and declined to discuss employment prospects at his new enterprise unless and untilthose employees tendered their resignations to the plaintiff company. The plaintiff brought this action premised upon tortiousinducement of breach of contract against the former branch manager, his new employer, and the employer's representative. Thedistrict court granted the defendants' motion for summary judgment. On appeal this court affirmed, holding that the formerbranch manager did not breach a fiduciary duty to the plaintiff and that the defendants did not interfere with the contractualrights between the plaintiff and its employees. Although an employee was subject to a duty not to compete with his employer, hewas not liable for a breach of that duty unless he caused his fellow employees to breach a contract. Merely preparing to competewith his employer did not violate this duty. Further, one who caused a third party to terminate a contract terminable at will didnot improperly interfere with that relationship unless wrongful means, such as physical violence, fraud, civil suit or criminalprosecution were used. There was no allegation of any wrongful means here. Electrolux Corp. v. Lawson, 654 P.2d 340, 342.

Colo.App.1981. Subsec. (1)(a) quot. in sup. A real estate developer instituted this action against the defendants for tortiousinterference with contractual relationship and prospective business advantage, and for breach of fiduciary duty. The defendantswere a bank, a bank officer, and a subsidiary of the bank engaged in real estate development. The plaintiff and the defendant hadsought to buy the same parcel of real estate through independent negotiations with the real estate broker. After the plaintiff wastold by the broker that his offer had been accepted by the owners, he contracted the defendant bank about financing the purchase.The plaintiff alleged that he was informed by the bank officer that the bank had once been interested in buying the propertybut no longer intended to purchase it. The plaintiff did not submit a loan application with lender's parent corporation. Later thedefendant offered the broker a lower price for the land, but in cash, and the offer was accepted. The lower court entered summaryjudgment for the defendant. This court affirmed the lower court in part and reversed it in part, and remanded. The court held,inter alia, that the defendant could not be held liable for tortious interference with a contractual relationship because the plaintiffhad no written contract with the owners of the real estate, and an oral contract for the real estate would be void as against thestatute of frauds. The court also held that the subsidiary was privileged with respect to the claim for tortious interference withprospective business advantage because it was the plaintiff's competitor in the field of real estate development. However, theparent corporation and the bank officer were not privileged, as they were not competitors. There were controverted materialissues of fact as to whether a fiduciary relationship existed between the bank and the plaintiff as a prospective borrower, and,if so, whether the bank and its officer breached their fiduciary duty not to misuse confidential information. Thus, summaryjudgment on this claim, as to these defendants, was improper. Dolton v. Capitol Federal Sav. & Loan Ass'n, 642 P.2d 21, 23.

Del.

Del.2010. Subsec. (1)(b) quot. in ftn. Contract research organization and a related business sued competitor and others, alleging,inter alia, that defendants intentionally interfered with plaintiffs' business relationship with a large pharmaceutical manufacturer.After a bench trial, the trial court entered a judgment in favor of plaintiffs. Affirming, this court held that defendants tortiouslyinterfered with plaintiffs' contract with manufacturer. While manufacturer was lawfully entitled to and did terminate its contractwith plaintiffs, a third party's lawful termination of a contract with a plaintiff did not, of itself, bar a claim that a defendanttortiously interfered with that contract; the focus of a claim for tortious interference with contractual relations was upon thedefendant's wrongful inducement of a contract termination, not upon whether the termination itself was legally justified. ASDI,Inc. v. Beard Research, Inc., 11 A.3d 749, 751.

Del.Ch.

Del.Ch.2010. Cit. in disc., cit. and quot. in ftn. Chemistry-based contract-research organizations sued their former executivevice president (EVP), EVP's new employer, and a competitor, among others, alleging that defendants tortiously interfered with










their prospective business relations with their long-term catalog and one-off customers. This court rejected defendants' argumentthat their challenged conduct in seeking plaintiffs' customers was not improper, because it was at least partly competitive; ampleevidence showed that defendants wrongfully interfered with plaintiffs' one-off and catalog business by intending to take all ofplaintiffs' business and make plaintiff shut its doors. Moreover, defendants took large amounts of confidential information fromplaintiffs, and used this information to solicit plaintiff's customers and set up a catalog that mimicked plaintiffs' catalog andcontained many of the same compounds. Beard Research, Inc. v. Kates, 8 A.3d 573, 611.

Del.Super.

Del.Super.2001. Cit. in ftn. Physician and his solely owned medical practice sued his former medical practice for, in part,intentional interference with his current or prospective contractual relationships with patients, colleagues, and the hospitalswhere he practiced medicine. Denying in part defendant's motion for summary judgment, the court held, inter alia, that, becauseof defendant's control over the hospital operating room schedule so as to allow defendant to decline requests from surgeonsand patients for plaintiffs' services, genuine issues of material fact existed as to whether defendant intentionally interfered withplaintiffs' prospective contractual relationships. Lipson v. Anesthesia Services, P.A., 790 A.2d 1261, 1287.

Fla.

Fla.2013. Cit. in sup. This court amended the standard jury instructions, as proposed by the Supreme Court Committee onStandard Jury Instructions in Civil Cases, with certain exceptions, and authorized the amended jury instructions for publicationand use. The commentary to the instruction on “Issues on Plaintiff's Claim—Interference with Business Relations or withContract Terminable at Will” cited Restatement Second of Torts §§ 768 and 769 in noting that the two most common basesfor interference claimed to be “proper” were the defendant's competitive purposes and his financial interest in the business ofthe third person whose relationship with claimant was interrupted, and that the committee therefore included in this instructionthe substance of the issues to be considered in those situations. In re Standard Jury Instructions in Civil Cases—Report No.12-01, 130 So.3d 596, 608.

Fla.1985. Cit. in disc. The Supreme Court Committee on Standard Jury Instructions (Civil) was given leave to recommend thatthe Florida Bar be authorized to publish certain revisions to the Florida Standard Jury Instructions. The committee recommendedthat two new charges be added regarding tortious interference with business relationships. The court noted in its comment to thefirst suggested charge that it could be used in rare cases where some form of interference with a contract not terminable at willmay be justified and therefore proper even if done intentionally. In its comments to the second recommended instruction, thecourt noted that the new charge properly included the two most commonly cited criteria for determining whether an interferenceis proper or improper, namely the extent of the defendant's competitive purposes or his financial interest in the business ofthe third person whose relationship with the claimant was interrupted. The Florida Bar Standard Jury Instructions, 475 So.2d682, 691.

Fla.App.

Fla.App.2020. Quot. in disc. Former employee and her current employer sued former employer, alleging that defendanttortiously interfered with business relations between plaintiffs and their clients in the alcohol-distribution industry by notifyingplaintiffs' clients that defendant would not do business with those who designated former employee as their representative. Thetrial court granted defendant's motion for summary judgment. This court affirmed, holding that defendant had a privilege tonotify plaintiffs' clients in order to protect its interests by disassociating itself from former employee, who previously had beenconvicted of numerous state and federal crimes, attempted to defraud defendant, and caused defendant to enter into a consentorder with Florida to avoid conducting business with her. In making its decision, the court relied on the elements of a tortious-interference claim as set forth in Restatement Second of Torts § 768. Weisman v. Southern Wine & Spirits of America, Inc.,297 So.3d 646, 650, 651.












Fla.App.2001. Quot. in disc., com. (e) and subsec. (1)(b) cit. in disc. After property owners accepted tenant's offer topurchase property, prospective buyer sued tenant, for, among other things, tortious interference with an advantageous businessrelationship. Trial court dismissed plaintiff's claim. Affirming, this court held that, where plaintiff and defendant werecompetitors for ownership of property, defendant's actions did not amount to “wrongful means” necessary to sustain claim fortortious interference with advantageous business relationship. Jay v. Mobley, 783 So.2d 297, 300.

Fla.App.1982. Cit. in ftn. The plaintiff, a national real estate franchisor, brought an action seeking temporary injunctive reliefagainst the defendant real estate franchisor. The plaintiff alleged tortious interference with contractual relationships on thepart of the defendant because the defendant was actively and aggressively soliciting the plaintiff's franchisees to enter intofranchise agreements with the defendant. The trial court granted the plaintiff an injunction and the defendant appealed. Thiscourt affirmed the trial court, holding that the defendant's interference had been intentional and unjustified. The court heldthat even if some franchisees' contracts with the plaintiff were terminable at will, the defendant's actions were tortious becausethey were malicious and not coupled with any legitimate competitive economic interest. Heavener, Ogier Services v. R.W. Fla.Region, 418 So.2d 1074, 1077.

Ga.App.

Ga.App.1998. Cit. in headnotes, cit. in case quot. in sup. A former sales representative for a manufacturer of wood columnssued the manufacturer and its president's son for breach of contract and tortious interference with contractual relations, amongother claims. Plaintiff had hired the president's son and had given him information on sales techniques and customer lists. Theson, with the manufacturer's tacit approval, then established a competing business to distribute the manufacturer's products inplaintiff's territory. Plaintiff argued that the manufacturer tortiously interfered with the employment contract between plaintiffand the president's son. The trial court granted the manufacturer summary judgment on plaintiff's claim for tortious interferencewith contractual relations. This court affirmed, holding, inter alia, that plaintiff failed to state a tortious interference claim,because plaintiff could not show that the president acted improperly or without privilege in talking to his son about firingplaintiff, or that their conversations were malicious or carried on with the intent to injure plaintiff. Kitfield v. Henderson, Black& Greene, 231 Ga.App. 130, 498 S.E.2d 537, 538, 541.

Ga.App.1992. Cit. in disc. §§ 766-769. Lessor of commercial building sued lessee's parent company for tortiously interferingwith the rental contract by halting rental payments asserted to be due and owing from lessee to plaintiff. Reversing the trialcourt's dismissal of the claim, this court adopted the rule of giving a qualified privilege to a parent corporation, permitting itto interfere with a wholly owned subsidiary's contractual relation with another party when the contract threatened a presenteconomic interest of the subsidiary, absent clear evidence that the parent employed wrongful means or acted with improperpurpose. The court held that the trial court erred in dismissing the claim because genuine issues of material fact existed as towhether defendant employed wrongful means or acted with improper purpose to terminate the lease. Sunamerica Financial v.260 Peachtree St., 202 Ga.App. 790, 415 S.E.2d 677, 684.

Ga.App.1991. Cit. in case cit. in sup., cit. generally in case cit. in ftn. At-will employees left their employment to work for acompeting company. The former employer sued the competitor and the former employees, alleging tortious interference withcontractual relationships. The trial court denied the defendants' motion for summary judgment. Reversing, this court held thatthe competitor's acts fell within the scope of the privilege of fair competition. The court reasoned that neither the competitornor its employees made statements or representations concerning the former employer, and that an employee was permittedto solicit former customers on behalf of his new employer. Furthermore, there was no plan or scheme designed to impair theformer employer's financial position or induce breaches of employment contracts. Contractors' Bldg. Supply v. Gwinnett, 199Ga.App. 38, 403 S.E.2d 844, 846.

Ga.App.1987. Quot. in part in disc. A rug manufacturer sued two former employees for breach of fiduciary duty, tortiousinterference with contract, and statutory violations after the employees started a competing business and induced other














employees to come and work for them. Defendants counterclaimed for breach of their employment contracts. The trial courtgranted in part and denied in part both parties' motions for summary judgment. Affirming in part, the court of appeals held thatan issue of fact remained for the jury as to whether defendants fulfilled their duties to plaintiff as full-time employees duringthe months they made plans for their new company, and whether defendants employed wrongful means to solicit plaintiff'semployees. E.D. Lacey Mills, Inc. v. Keith, 183 Ga.App. 357, 359 S.E.2d 148, 155.

Ga.App.1984. Cit. in disc. The plaintiff, a corporation organized in 1980, imported rugs from Europe. In 1981, the plaintiffdecided to sell its assets. As a result of this decision, the defendant, vice president of sales for the plaintiff, went to work fora competitor, a co-defendant here. The plaintiff's suit alleged that the defendants had tortiously interfered with its contractualrelations by buying and selling rugs from its former customers and suppliers. The trial court granted the defendant's motionfor summary judgment. This court affirmed, noting that the defendant left the plaintiff's employ because of uncertainty abouthis employer's future, that the European rug suppliers never had exclusive contracts with the plaintiff, and that the Europeansuppliers testified that none of the defendants had attempted to interfere or to influence them with regard to any relationshipsthat their companies might have had with the plaintiff. Sofate of America, Inc. v. Brown, 171 Ga.App. 39, 318 S.E.2d 771, 774.

Hawaii App.

Hawaii App.1998. Cit. in ftn.; cit. in disc. as §§ 768-773. A temporary employee for a rent-a-car company who applied forfull-time employment with the company was required to take a drug test. He sued the drug lab and the lab employees whoconducted the test for intentional interference with prospective contractual relations, alleging that the employees told the carcompany that the employee had not cooperated during the test. Trial court granted defendants summary judgment. This courtaffirmed, holding, inter alia, that a plaintiff alleging the tort of interference with prospective contractual relations must pleadand prove that the interference was without proper justification. Defendants' communication of information to the car companywas privileged because it was truthful, and thus defendants could not be held liable for intentional interference with plaintiff'sprospective employment contract. Kutcher v. Zimmerman, 87 Hawai'i 394, 957 P.2d 1076, 1085, 1090.

Idaho App.

Idaho App.1999. Com. (i) cit. and quot. in sup. Truck brokerage business brought suit for, in part, intentional interferencewith contract against former employee's new employer. The trial court held that defendant intentionally interfered withnoncompetition covenant between plaintiff and its former employee, but that plaintiff was not entitled to recover damagesbecause it had not shown any resulting injury. Affirming, this court held that defendant intentionally employed plaintiff's formeremployee as truck broker in knowing violation of terms of covenant not to compete, but that plaintiff did not prove, withreasonable certainty, actual damages caused by interference. Magic Valley Truck Brokers, Inc. v. Meyer, 133 Idaho 110, 982P.2d 945, 950, 951.

Idaho App.1986. Cit. in sup. An employer sued a former employee for intentional interference with existing or prospectivecontractual relations between the employer and potential clients, alleging that the defendant had acted tortiously by using theplaintiffs' patient lists and by soliciting his patients. The lower court granted the employee's motion for summary judgment.Affirming, this court held that the former employee enjoyed a qualified privilege allowing him to interfere with his competitor'sprospective contracts and that the employee had not resorted to conduct constituting such wrongful means as to defeat thecompetition privilege. Frantz v. Parke, 111 Idaho 1005, 729 P.2d 1068, 1075.

Ill.App.

Ill.App.2007. Subsec. (1) quot. in sup. Attorney who managed the leasing of homeowner's home brought a claim for tortiousinterference with prospective business advantage against real-estate brokerage firm that sold the home for homeowner, allegingthat defendant improperly interfered with his oral agreement with homeowner to purchase the home. The trial court granted










summary judgment for defendant. This court affirmed, holding that defendant's actions fell within the privilege of competition,as defendant lawfully competed with plaintiff over the subject property in an open real-estate market; defendant's motive inlisting the property and later effectuating a sale of the property was to advance its business interest by acquiring a commissionfor its efforts, and nothing in the record suggested that it acted out of spite or ill will for plaintiff. Miller v. Lockport RealtyGroup, Inc., 377 Ill.App.3d 369, 315 Ill.Dec. 945, 878 N.E.2d 171, 178.

Ill.App.2006. Com. (i) quot. in sup. Videotaping business sued former employee who established a competing business for,among other things, allegedly “stealing” a client by failing to inform client of his resignation. The trial court granted summaryjudgment for defendant as to plaintiff's claims of tortious interference with contract and tortious interference with prospectiveeconomic advantage. Affirming, this court held, inter alia, that even if defendant engaged in the alleged improper interference,it had no effect on plaintiff's loss of client, because the evidence indicated that client intended to work with defendant regardlessof his employment status. The court noted that, at best, plaintiff had an oral contract with client that was terminable at will, andsuch contracts were essentially treated the same as mere business expectancies. The Film and Tape Works, Inc. v. JunetwentyFilms, Inc., 368 Ill.App.3d 462, 305 Ill.Dec. 807, 814, 815, 817, 856 N.E.2d 612, 619, 620, 622.

Ill.App.1995. Cit. in headnote, cit. and quot. in disc., subsec. (1)(d) cit. in disc., coms. (a) and (b) cit. in disc. A bidder on acity contract sued a competitor and the city, alleging tortious interference with prospective economic advantage. Trial courtgranted competitor summary judgment. This court affirmed, holding, inter alia, that competitor was entitled to raise competitionas a privileged interference, and that defense would defeat plaintiff's intentional-interference claim unless competitor couldestablish that the means of competition employed by competitor were wrongful. Because most of competitor's statements couldnot be characterized as false or misleading, those statements were not acts of improper competition so as to defeat competitor'sprivileged interference. Soderlund Bros., Inc. v. Carrier Corp., 278 Ill.App.3d 606, 215 Ill.Dec. 251, 258, 260, 663 N.E.2d 1,8, 10.

Ill.App.1989. Cit. in sup. A car dealer sued its competitor for tortious interference with prospective business expectancies. Thecompetitor had published a brochure that gave false information about the plaintiff's service inspection prices. The trial courtdismissed the complaint, finding that the plaintiff failed to allege a reasonable business expectancy. Reversing, this court held,inter alia, that the plaintiff's assertion that 80% of the people who bought Saabs from its dealership came back for service wassufficient for the purposes of a pleading to show a reasonable expectancy of entering into a valid business relationship. Moreover,while the defendant's behavior did not rise to the level of fraud, its publishing of the plaintiff's prices without verifying themgave sufficient support to the plaintiff's allegation of wrongful conduct to reverse the dismissal. Downers Grove Volkswagenv. Wigglesworth, 190 Ill.App.3d 524, 137 Ill.Dec. 409, 412, 546 N.E.2d 33, 36.

Ill.App.1989. Com. (i) cit. in disc. The former director of a city's electrical department, who was fired by the city after severalaltercations with and false accusations by the mayor, sued the mayor for tortious interference with an employment relationship,inter alia. The trial court dismissed the claim with prejudice for failure to state a cause of action. Reversing and remanding,this court held that the plaintiff pleaded sufficient facts to state a cause of action and would be entitled to recover if proof attrial established that the plaintiff's expectation of continued at-will employment with the city was reasonable, that the defendantintentionally and without justification interfered with the plaintiff's reasonable expectations of continued at-will employment,and that the plaintiff was damaged by that interference. Fellhauer v. City of Geneva, 190 Ill.App.3d 592, 137 Ill.Dec. 846, 855,546 N.E.2d 791, 800.

Ill.App.1988. Quot. in ftn. and cit. in disc., com. (i) cit. in ftn. A partnership represented toy and craft manufacturers andreceived commissions from the sale of the manufacturers' products. The defendant partner allegedly notified the plaintiff partnerthat he was altering the division of the profits, and the plaintiff partner filed a complaint for dissolution of the partnership. In anamended complaint, the plaintiff alleged that the national sales manager and the vice president of sales of a toy manufacturerintentionally interfered with the contractual relations of the partnership. The trial court granted summary judgment for thenational sales manager and the vice president of the toy manufacturer. This court affirmed, holding that the sales manager andthe vice president were conditionally privileged to interfere with the contractual relationship between the partners, and that the













plaintiff failed to set forth factual allegations from which actual malice could reasonably be said to exist. The court rejectedthe plaintiff's contention that the two defendants were not privileged to interfere with the partnership because the partnershipand the toy manufacturer were not competitors. While noting that the partnership agreement was terminable at will, the courtdid not decide whether the agreement was entitled to the level of protection generally afforded contracts. Langer v. Becker,176 Ill.App.3d 745, 126 Ill.Dec. 203, 531 N.E.2d 830, 834, 836, appeal denied 125 Ill.2d 566, 130 Ill.Dec. 481, 537 N.E.2d810 (1989).

Ill.App.1987. Quot. in disc. An insurance company sued a former agent, alleging, inter alia, tortious interference with contract.The plaintiff sought damages and an injunction to prevent the defendant from inducing the plaintiff's policyholders to terminatepolicies that the defendant had sold or serviced while in the plaintiff's employ and to replace them with policies of a differentcompany. The trial court granted the defendant's motion to dismiss, holding that the complaints were substantially insufficientin law. Affirming, this court held, inter alia, that the plaintiff failed to state a claim for tortious interference with contract. Thecourt reasoned that the alleged violation was insufficient for a finding of improper interference where the interference wasundertaken by a former agent pursuant to otherwise lawful competition with respect to terminable-at-will policies. PrudentialIns. Co. of America v. Van Matre, 158 Ill.App.3d 298, 110 Ill.Dec. 563, 511 N.E.2d 740, 744, 745, appeal denied 117 Ill.2d553, 115 Ill.Dec. 409, 517 N.E.2d 1095 (1987).

Ill.App.1985. Quot. in sup., cit. in sup., com. (i) quot. in sup. A physician sued three other physicians for barratry andinterference with prospective economic advantage for their allegedly having encouraged some of the plaintiff physician's formerpatients to file malpractice lawsuits against the plaintiff in retaliation for his expert testimony in a prior case against one of thedefendants. A separate charge of interference with contractual relations arose out of a defendant's having contacted one of theplaintiff's patients to induce her to make an appointment with the defendant. The appellate court held, inter alia, that the trialcourt correctly granted the defendant's motion for summary judgment on the interference with contractual relations issue. Thecourt reasoned that the physician-client relationship was a relationship that was terminable at will, and the defendant's lawfulcompetition for business was privileged interference because the plaintiff physician had no long-term contractual rights to treatthe patient. Galinski v. Kessler, 134 Ill.App.3d 602, 89 Ill.Dec. 433, 480 N.E.2d 1176, 1182, 1183.

Ill.App.1980. Com. (i) cit. in ftn. in sup. The plaintiff company and a third company entered into a contract in order to effect amerger of the two companies. The contract required that the companies present the proposed merger to their shareholders buteach company could not change its financial status prior to the merger. The defendant company had been evaluating the meritsof merging with the third company but was unaware of the contract between the plaintiff and the third company. The defendantcontacted the third company to inform it that a tender offer was to be advertised in the Wall Street Journal. Later that day, thethird company received a letter from the defendant which generally outlined the plans of the proposed merger. The letter differedfrom the newspaper offer in that it contained a paragraph stating that the offer was conditioned upon the merger being rejectedby the shareholders of either company. The plaintiff company filed an action against the defendant company for inducement tobreach a contract and tortious interference of prospective advantage. The plaintiff and the third company amended the contractto allow for the immediate exchange of shares between the shareholders of the two companies in order to effect a partialmerger. A trial court granted the defendant's motion to enjoin the share exchange. However, the court also granted a temporaryinjunction barring the defendant from proceeding with the tender offer. On appeal, this court examined the nature of the twoalleged torts. The court stated that the elements of interference with contractual relations include the existence of an enforceablecontract between the plaintiff and another party, the defendant's awareness of that contractual relation, the defendant's intentionalinducement of a breach of that contract and a subsequent breach by the third party induced by the defendant which results indamages. Interference with prospective advantage differs in that the plaintiff has only a reasonable expectancy of entering intoa business relationship and the defendant must intentionally interfere and cause harm to the plaintiff's expectancy. The right toproceed in a business relationship is not as absolute as is the right to receive the benefits of a valid contract. The court foundthat the plaintiff had an enforceable contract but that it and its shareholders did not have an unequivocal right to the benefits ofthe merger because the third company's shareholders still had to ratify the contract and the contract imposed no duty on thoseshareholders to do so. Therefore the plaintiff had only a mere expectancy of a business relationship. The court held that theplaintiff's prospective advantage should not be given more protection than any other party's prospective advantage, including












the defendant's. The defendant had not engaged in any unfair business practices and the paragraph in the Wall Street Journal,which mentioned the possible rejection of the merger, did not contain disparaging remarks, but rather, was a factual listing ofthe company's options. The preliminary injunction was therefore vacated and the case was remanded for a trial on the merits.Belden Corp. v. Inter-North, Inc., 90 Ill.App.3d 547, 45 Ill.Dec. 765, 413 N.E.2d 98, 102.

Ill.App.1980. Quot. in disc. and com. (a) cit. in disc. The plaintiff, trustee of a trust holding title to real property, filed a complaintalleging that the defendants, the plaintiff's mortgage banker, the mortgagee of the property and a leasing and developmentcorporation, conducted certain activities which constituted interference with prospective business advantage. The defendantsfiled a motion to dismiss and in their reply brief argued that the complaint failed to state a cause of action and that they could notbe held liable because they were competitors of the plaintiff. The trial court granted the motion to dismiss, but this court reversedfinding the defendants' motion insufficient. This court stated that concerning the defendants' argument that, as competitors, theywere not liable to the plaintiff, it was not clear whether engaging in competition was an affirmative defense to be raised andproven by the defendant or instead was simply not improper conduct inconsistent with the American system of free enterprise.If it was the latter, then it could not be raised by motion. If it was an affirmative defense, the defendants failed to raise thedefense because they had not alleged nor proven that they did not employ wrongful means. Under the Restatement approach,the rule relating to competition is dependent upon the actor not having used unfair means. Michigan Avenue Nat. Bank v. StateFarm Ins., 83 Ill.App.3d 507, 39 Ill.Dec. 42, 404 N.E.2d 426, 431.

Ind.App.

Ind.App.2005. Quot. in case quot. in sup., coms. (b) and (e) quot. in case quot. in sup. Business owner who bought a drain-cleaning company sued company's seller after seller started a nearby competing drain business and solicited customers that hehad serviced when he owned company, alleging, inter alia, tortious interference with contractual relations. Trial court granteddefendant summary judgment. This court affirmed, holding that plaintiff's tortious-interference claim failed since defendant'sconduct was not illegal and there was no fact issue regarding an absence of justification because the parties were competitors,defendant did not employ wrongful means to solicit plaintiff's customers, defendant's actions did not create or continue anunlawful restraint on trade, and defendant's purpose was at least in part to advance his interest in competing with plaintiff. Ricev. Hulsey, 829 N.E.2d 87, 91, 92.

Ind.App.1998. Quot. in sup., coms. (b) and (e) quot. in sup. Insurer sought declaration that, as a result of former agent's acts ofunfair competition, it was no longer required to pay him renewal commissions. The trial court entered summary judgment fordefendant. Affirming in part, reversing in part, and remanding, this court held, inter alia, that material factual issues existed as towhether defendant wrongfully retained policyholder lists belonging to plaintiff; that the policyholder information at issue wasnot a trade secret; and that defendant's actions in inducing plaintiff's customers to give up their existing policies and purchaseinsurance from him did not constitute tortious interference with contract, because such conduct was privileged. Harvest LifeIns. Co. v. Getche, 701 N.E.2d 871, 877.

Ind.App.1995. Cit. in headnotes, quot. in sup., com. (a) cit. in sup., com. (b) quot. in sup., com. (e) cit. and quot. in sup. Computerhardware and programming services provider sued programming services provider for tortious interference with businessrelationship and computer hardware dealer for criminal conversion and tortious conversion. Trial court granted defendantssummary judgment. This court affirmed in part and reversed in part, holding, inter alia, that even if, during the time before athird party terminated its business relationship with plaintiff, defendant programming services provider had caused third partynot to continue with an existing contract with plaintiff, the contract was one terminable at will and defendant did not employwrongful means. Evidence showed that third party was unsatisfied with plaintiff and began a search for different suppliersto replace it. Defendant learned about the search and met with third party to submit its standard terms and rates. Thus, thecourt concluded that defendant merely acted within the proper scope of competition with plaintiff over third party's business.Computers Unlimited v. Midwest Data Systems, 657 N.E.2d 165, 166, 169, 170.











Iowa

Iowa, 1990. Cit. in disc. §§ 767-774. A property developer sought to renovate a building to lease to governmental andcommercial tenants. Two other commercial lessors dropped their rental rates to keep their tenants from moving to the newbuilding, but the tenants decided to relocate to the new building anyway, prompting the lessors to initiate lawsuits and tolodge complaints with the city building inspector. The developer sued the lessors for intentional interference with existing andpotential business contracts after he was unable to finance the project due to bad publicity. The trial court granted the defendants'motion for judgment notwithstanding the verdict, setting aside the jury's verdict awarding compensatory and punitive damages.Reversing and remanding, this court held that there was substantial evidence to create a jury question on the interference to theplaintiff's existing and potential contracts. The court stated that the focus was on whether the plaintiff's own ability to performunder his contracts or in getting new contracts was prevented by the defendants' actions. It granted a new trial, with instructionsthat the jury should consider if the acts were intentional and improper as far as the motivation behind them. Nesler v. Fisherand Co., Inc., 452 N.W.2d 191, 199.

Iowa App.

Iowa App.1996. Cit. in headnote, cit. and quot. in sup. A wholesaler sued a competitor, alleging intentional interferencewith an employment contract between the wholesaler and its salesman. Trial court entered judgment for plaintiff. This courtreversed and remanded, holding that the record did not contain substantial evidence showing defendant was motivated toterminate the contract for improper reasons. Although defendant violated its own noncompetition agreement and failed to followthe recognized procedure in notifying the salesperson before contacting a competitor's account, there was no evidence thatdefendant's wrongful means further revealed a predominant motive by defendant to terminate the contract for improper reasons.RTL Distributing v. Double S Batteries, Inc., 545 N.W.2d 587, 588, 591.

Md.

Md.1994. Com. (g) cit. in disc. Insurance broker sued a competing broker, its vice president, and others for breach of contract,conspiracy, and tortious interference with an economic relationship after it was allegedly deprived of commission on the lastpremium paid by a hospital that had turned its malpractice insurance business over from plaintiff to defendant broker. Judgmenton a jury verdict for plaintiff was vacated in part by the court of special appeals, and following a retrial on punitive damages,judgment was entered awarding plaintiff $5 million in punitive damages. After granting certiorari, the court of appeals reversedand remanded. Punitive damages were awardable only if there was tortious conduct accompanied by “malice,” and this court heldthat plaintiff failed to prove either tortious conduct or actual malice where statements purporting to show defendants' animositytoward plaintiff were inadmissible hearsay and where defendant broker had a legitimate business reason for preventing plaintifffrom obtaining a commission by requiring its wholly owned subsidiary to cease its relationship with plaintiff. Alexander v.Evander, 336 Md. 635, 650 A.2d 260, 271.

Md.1994. Cit. in sup. and in headnote, subsecs. (1) and (2) cit. and quot. in sup. Former commercial tenant sued current tenant,alleging unlawful appropriation of its trade name and tortious interference with its lease. This court reversed in part and affirmedin part a judgment on a verdict for former tenant, holding, inter alia, that current tenant did not tortiously interfere with formertenant's lease by improperly inducing landlord to cancel the lease, as lease was terminable at will and defendant successfullyand legitimately competed for the space. The court noted that, even though this case involved a lease terminable at will, itwas governed by principles involving tortious interference with prospective contractual relations. It also stated that where thedecision whether to terminate or continue a contract with plaintiff rests solely in third party's discretion, it is not improper orwrongful conduct for plaintiff's competitor to provide that third party with a reason for exercising his or her discretion. Macklinv. Logan, 334 Md. 287, 297, 639 A.2d 112, 113, 118-120.












Md.1984. Quot. in sup. The plaintiff leased stores in a shopping center, and started directly competing with the defendant store.The defendant store later pressured the defendant landlord into not renewing the plaintiff's leases. The plaintiff then broughtthis action for malicious interference with the plaintiff's business. The trial court granted summary judgment to the defendants,and the plaintiff appealed. This court reversed on this issue and remanded. Noting that the tort of malicious prosecution hasbeen extended to cover situations where no contract existed, the court held that the defendants' acts, if proven to be part of aprice-fixing combination, would also constitute malicious interference with business. Natural Design, Inc. v. Rouse Co., 302Md. 47, 485 A.2d 663, 676.

Md.Spec.App.

Md.Spec.App.2012. Quot. in sup., cit. in cases quot. in sup., coms. (b) and (e) quot. in sup. Seller of video networking productsbrought, inter alia, claims for tortious interference with contract and business relations against seller of proprietary medical-simulation software that had entered into a subcontract agreement with plaintiff in which the parties could bundle their servicesfor sale as a package to customers. The trial court entered judgment on a jury verdict for plaintiff. Affirming, this court heldthat whether defendant's actions in contracting separately with a hospital, after presenting itself as part of a team that includedplaintiff and a nonparty telecommunications company, constituted improper competition and wrongful or illegal conduct underthe relevant Indiana law were questions for the jury. B-Line Medical, LLC v. Interactive Digital Solutions, Inc., 209 Md.App.22, 57 A.3d 1041, 1060.

Md.Spec.App.1996. Subsec. (1)(b) cit. in headnote and in disc. Nurses' union sued provider of replacement nurses to facilitieswhose nurses were on strike, alleging that defendant maliciously and wrongfully interfered with the economic relationshipbetween plaintiff and health-care facility owner under a state statutory provision restricting an employer's right to hirereplacement workers. Affirming the trial court's dismissal of the complaint, this court held, inter alia, that, even thoughdefendant's alleged conduct contravened the dictates of the statutory restriction and thus was unlawful, thereby satisfying theunlawful-or improper-conduct element of the wrongful-interference tort, plaintiff's complaint nevertheless failed to state a causeof action, because the statutory restriction was preempted by the National Labor Relations Act for impermissibly affectingthe economic tools available to management and labor in collective bargaining. Professional Staff Nurses v. Dimensions, 110Md.App. 270, 677 A.2d 87, 89, 95.

Md.Spec.App.1991. Quot. in sup., com. (i) quot. in sup. An employer sued his former employee and her new employer forbreach of contract and tortious interference with contract, alleging that the employee's solicitation of customers she had servicedfor her ex-employer constituted a breach of the restrictive covenants contained in her employment contract. The trial courtentered judgment against the defendants and awarded the plaintiff damages. Affirming in part, this court held, inter alia, thatthe new employer tortiously interfered with the nonsolicitation covenant when the new employer assisted and subsidized theemployee, knowing that her activities violated the nonsolicitation clause. Moreover, the court said that after the employee wasspecifically enjoined by the trial court from contacting the former employer's customers, the new employer itself continuedsoliciting those customers and continued assisting the employee in cultivating them. Fowler v. Printers II, 89 Md.App. 448,598 A.2d 794, 803, 805.

Mass.App.

Mass.App.2009. Subsec. (1)(d) and com. (g) cit. in case cit. in sup. Staffing company sued customer that hired a consultant whohad a noncompete agreement with staffing company, alleging, among other things, intentional interference with contract, breachof contract, and unfair and deceptive business practices in violation of a Massachusetts statute. The trial court entered judgmenton a jury verdict for plaintiff. Reversing, this court held, inter alia, that defendant, which was not a party to the noncompeteagreement, had a right to hire the consultant if it chose to do so. The court noted that, while not competitors in the strict senseof the term, plaintiff and defendant had legitimate and opposing business interests in the use of the consultant's services, andthat pursuit of a legitimate business interest, without more, failed to qualify as an improper means or motive in analyzing the











elements necessary to support a claim for interference with contract. Synergistics Technology, Inc. v. Putnam Investments, LLC,74 Mass.App.Ct. 686, 690, 910 N.E.2d 388, 391.

Mass.App.2002. Subsec. (1)(d) cit. in sup., com. (g) quot. in sup. Real-estate broker that had signed a letter of intent for purchaseof another brokerage brought suit for intentional interference with contract against competitor that acquired the brokerage.The trial court entered summary judgment against plaintiff. Affirming in part, this court held, inter alia, that defendant'smisrepresentation that it had no interest in making the purchase did not constitute improper means, and competitor's official'sremarks reflecting ill will toward plaintiff were irrelevant to the issue of defendant's motivation, since evidence existed thatdefendant's dominant purpose in the acquisition was commercial profit. Hunneman Real Estate Corp. v. Norwood Realty, Inc.,54 Mass.App. 416, 429, 765 N.E.2d 800, 809.

Mass.App.1999. Cit. in disc. An unsuccessful bidder and others sued the state and the successful bidder for intentionalinterference with advantageous commercial relations, among other claims, alleging there were bidding irregularities thatdisadvantaged the bidder. Trial court dismissed. This court affirmed, holding, inter alia, that plaintiff's intentional-interferenceclaim failed, because there was no relationship between plaintiff and the state other than that of responder to a procurementrequest. Plaintiff and the successful bidder were direct competitors in selling a light bar component, and anything that thesuccessful bidder may have done to bring the prize home was a proper motive. Natick Auto Sales, Inc. v. Department ofProcurement and General Services, 47 Mass.App. 625, 715 N.E.2d 84, 90.

Mass.App.1993. Cit. in sup. A graphic arts products distributor sued a manufacturer for injunctive relief and damages, alleging,among other claims, tortious interference with contractual relations with third parties arising from the manufacturer's cancellingof the parties' dealership agreement. This court, affirming in part and reversing in part trial court's entry of judgment that includeda directed verdict for the manufacturer on the tortious-interference claim, held, inter alia, that the manufacturer's alleged attemptto persuade the distributor's customers to use its products rather than those from a manufacturer with whom the distributorhad an exclusive dealership agreement was insufficient to support the tortious-interference claim, absent a showing that thisconduct was unlawful. The court stated that defendant's actions of promoting sales of its product line and discouraging salesof a competitor's product line were normal business objectives. W. Oliver Tripp Co. v. American Hoechst, 34 Mass.App. 744,751, 616 N.E.2d 118, 125.

Mass.App.1989. Quot. in disc., subsec. (1)(b) cit. in sup. A real estate broker made an offer to purchase a piece of property forhimself, even though the property was the subject of extensive negotiations between the sellers and one of the broker's clients.The sellers accepted the broker's offer and the client sued the broker for, inter alia, interfering with a contractual or advantageousrelationship. The jury found for the client on that claim, and this court affirmed. Since nothing in the defendant's submissionof requests for findings of fact and rulings of law could be construed as raising the issue of competition as proper or improperinterference, the court declined to decide whether tortious interference existed, because it was a factual issue for the trier offact. The court noted that evidence showed that the broker had deliberately designed his offer to give an appearance that it wasbetter than the client's, and that the broker had presented his offer while the client and sellers were still negotiating, both factorswhich indicated that the defendant's intentional interference was unwarranted and improper. Dowd v. Iantosca, 27 Mass.App.325, 538 N.E.2d 33, 38, review denied 405 Mass. 1202, 542 N.E.2d 601 (1989).

Mass.App.1988. Cit. in disc. The buyer of a hotel sued the seller for specific performance of a purchase and sale agreementand sued a third party for tortious interference with contract after the seller had entered into a later and more favorable purchaseand sale agreement with the third party. The trial court entered a judgment for the plaintiff. Reversing the judgment against thethird party on the tortious interference with contract claim, but affirming the order of specific performance, this court held thatthe third party who had signed a later purchase agreement with the seller was not liable for tortious interference with contract;the third party had not intentionally and willfully employed any wrongful means to secure her purchase agreement with theseller, nor could she have intended to interfere with the plaintiff's contract since she was not aware that the plaintiff and theseller had entered into a binding contract. Yiakas v. Savoy, 26 Mass.App. 310, 526 N.E.2d 1305, 1309, review denied 403 Mass.1103, 529 N.E.2d 1346 (1988).

















Mass.App.1986. Cit. in sup. A real estate developer entered into negotiations to buy an apartment building from the ownersfor a condominium conversion. When a real estate investor heard the details of the developer's plan, he said he would take a50% position in the secondary financing. After the purchase price had been settled with the developer but the financing wasstill uncertain, the owners broke off negotiations with the developer and sold to the investor at the same price and under morefavorable terms. The developer sued the investor for damages on the theory of tortious interference with prospective contractualrelations. The lower court held that the investor had not committed an actionable interference. Affirming, this court reasonedthat a competitor may “interfere” with another's contractual expectancy by picking the deal off for himself, if, in advancing hisown interest, he refrained from employing wrongful means. Doliner v. Brown, 21 Mass.App.Ct. 692, 489 N.E.2d 1036, 1038.

Mass.App.1983. Cit. in ftn. in sup. A furniture installer sued a manufacturer for breaches of installation agreements; he sued anemployee of the manufacturer for wrongful interference with business relations and misrepresentation. The trial court grantedjudgment n.o.v. to the employee, but allowed verdicts against the manufacturer for money owed on a completed contract andfor breach of three executory contracts. In affirming the decisions against the manufacturer, this court held that the trial courthad correctly instructed the jury that the practices of the installer and the manufacturer indicated contract formation by informalagreement. It ruled that the various claims against the employee amounted to allegation of a single wrong interference withcontractual relations, and not that wrong in combination with multiple related torts including defamation, injurious falsehood,and misrepresentation. It then held that the employee's actions were within his scope of employment and were thereforeprivileged; moreover, since the installer had recovered from the manufacturer, recovery on the wrongful interference claimwould be a duplication. Laurendeau v. Kewaunee Scientific Equipment, 17 Mass.App.Ct. 113, 456 N.E.2d 767, 772, reviewdenied 390 Mass. 1106, 459 N.E.2d 824 (1984).

Mass.App.1982. Com. (i) cit. in sup. The plaintiff filed suit against several former employees, their attorney, and their newcorporation for wrongful appropriation of a corporate opportunity. The defendants left their jobs with the plaintiff and formeda new corporation to purchase the assets of a third corporation offered for sale to the plaintiff. The defendants also hired awayother employees from the plaintiff. The trial court found for the plaintiff, but all parties appealed. The court affirmed. Thedefendants were free to hire the employees without incurring liability as long as they do not use “wrongful means” because thelower court had held them to be employees terminable at will. Liability was imposed, however, because the defendants wereacting in a conspiracy to take advantage of the breach of a duty of loyalty owed to the plaintiff by using the inside informationthey had gained as trusted employees. BBF, Inc. v. Germanium Power Devices Corp., 13 Mass.App.Ct. 160, 430 N.E.2d 1221,1225, review denied 385 Mass. 1103, 441 N.E.2d 1043 (1982).

Mich.App.

Mich.App.1984. Quot. in ftn. Plaintiff sued defendants alleging tortious interference with a contract under which he was topurchase three nursing homes. Plaintiff based his complaint solely on the fact that defendants outbid him in the purchase.The trial court granted summary judgment for defendants on the ground that plaintiff failed to demonstrate unlawful acts ofinterference on the part of the defendants. Although agreeing with plaintiff that illegal acts are not a prerequisite to liabilityfor tortious interference with contractual relations, this court affirmed. It held that plaintiff was required to allege either theintentional doing of a per se wrongful act, or the doing of a lawful act with malice and for the purpose of invading contractualrights. The court concluded that the placing of a more attractive offer to purchase is not a wrongful act and that plaintiff had notalleged any unlawful purpose. Feldman v. Green, 138 Mich.App. 360, 360 N.W.2d 881, 890.

Minn.

Minn.1982. Quot. in sup. The plaintiff, an established cooperative composed of farmers who grew wild rice, brought this actionagainst a newly formed corporation dealing in wild rice, alleging unfair competition, deceptive trade practices, and unfair tradepractices. The trial court granted a permanent injunction to the plaintiff which enjoined the new corporation from engaging inthe manufacturing, buying, or selling of wild rice for a specified time period. On appeal, this court reversed the order, holding,










inter alia, that there was no tortious interference with contractual relationships. This court found that the defendant's solicitationand entry into contracts with the plaintiff's potential customers was not improper because this activity fell squarely within theambit of competition between the plaintiff and the defendant, the defendant did not employ wrongful means, the interference didnot constitute an unlawful restraint of trade, and one of the defendant's purposes was to advance his own interest in competingwith the plaintiff. United Wild Rice, Inc. v. Nelson, 313 N.W.2d 628, 633.

Minn.App.

Minn.App.1991. Quot. in case quot. in sup. A farmer and his wife sued neighboring farmers for tortious interference withtheir contract to purchase foreclosed property from a bank, alleging that the defendants' attorney induced the property owner toexercise her right of first refusal, thereby terminating the plaintiffs' sales contract. The trial court granted the plaintiffs' motionfor summary judgment, ordering the property to be transferred to the plaintiffs. Affirming, this court held, inter alia, that thedefendants intentionally interfered with the plaintiffs' contract because they knew that they had to interfere with the contract inorder to acquire the property for themselves from the property owner. The court also determined that because the defendantshad employed “wrongful” means, their interference could not be justified by the argument that it was a form of competition.Schumacher v. Ihrke, 469 N.W.2d 329, 334-335.

Mo.App.

Mo.App.2006. Cit. in case quot. in disc. Heart surgeon sued fellow surgeon for, in part, tortious interference with businessrelationship, alleging that defendant caused him to lose his position at a regional medical center. The trial court granted summaryjudgment for defendant. This court reversed and remanded the tortious-interference claim, holding, inter alia, that questionsof fact remained as to whether defendant, by misrepresenting facts concerning plaintiff's performance, used improper meansin interfering with medical-management firm that provided plaintiff's services to center, thereby tortiously interfering with anexisting contract and/or commercial expectancy between plaintiff and firm. Clinch v. Heartland Health, 187 S.W.3d 10, 16.

Mo.App.2002. Cit. but dist. Purchaser who contracted to buy home sued sellers, subsequent purchaser, and sellers' real estateagent and broker for, inter alia, tortious interference with contract after sellers, claiming that purchaser terminated agreementby failing to make timely loan application, sold home to subsequent purchaser. Defendants filed counterclaims and third-partyclaim. Trial court denied purchaser summary judgment, awarded sellers and subsequent purchaser costs and attorney fees, anddenied defendants relief on remaining claims. Affirming in part, reversing in part, and remanding, this court held, inter alia,that genuine issues of material fact precluded summary judgment on purchaser's tortious-interference claim, and agent's andbroker's claim of qualified justification for competitive conduct did not apply to existing contracts. Howard v. Youngman, 81S.W.3d 101, 115, 116.

Mo.App.2000. Subsec. (1) cit. in disc. Employer sued former employee for breach of a nonsolicitation agreement after defendantinformed one of his former co-workers of a possible opening with his new firm. The trial court entered judgment for defendant.Affirming, this court held, in part, that the agreement constituted an unenforceable restrictive covenant in restraint of trade,since it did not seek to protect proprietary information or customer contacts but, rather, the stability of plaintiff's workforce.Schmersahl, Treloar & Co., P.C. v. McHugh, 28 S.W.3d 345, 351.

Mo.App.1993. Cit. in case cit. in sup. Disappointed bidder on school construction project sued successful bidder andarchitectural consultant for school district, alleging tortious interference with contract. The trial court dismissed for failureto state a claim. Reversing and remanding, this court held, inter alia, that specific allegations in support of the assertion thatdefendants had deliberately and wrongfully interfered with plaintiff's reasonable expectation of receiving the contract awardwere sufficient to state a cause of action for tortious interference. Killian Const. Co. v. Jack D. Ball & Assoc., 865 S.W.2d889, 892.











Mo.App.1990. Quot. in case quot. in sup. An insurance company sued its former employee for tortious interference withcontract, inter alia, after he resigned and started a competing business in the same area, taking a major client with him. Thetrial court entered judgment on a jury verdict for the plaintiff. Reversing in part, this court held that the plaintiff failed to provethat the defendant acted without justification in writing a major policy for the plaintiff's former client. The court pointed outthat the defendant employed no wrongful means, that the purpose of his action was to advance his interest in competing withthe plaintiff, and that the relationship that the former client had with the plaintiff was terminable at will. Jacomo Ins. Service,Inc. v. Billups, 787 S.W.2d 304, 307.

Mo.App.1987. Quot. in disc. (Erron. cit. as § 968.) A realtor sought to enjoin a company that was engaged in renting outdoorspace for advertising from impeding the realtor's and a competitor's use of a rental property and ordered the company to removeits advertising sign on the property. The trial court found for the realtor. Affirming, this court held that there was no bindinglease agreement between the realtor and the advertising company because the realtor's offer was effectively revoked beforeit was accepted; that the realtor had not induced the company's performance by any promises of holding the offer open; andthat erection of the sign did not constitute consideration for the lease agreement. The court rejected the advertising company'sargument that its competitor engaged in tortious interference with a valid business expectancy, holding that the competitor'sconduct was merely an attempt to further its own business interests. National Advertising Co. v. Herold, 735 S.W.2d 74, 79.

Mo.App.1985. Cit. in case quot. in disc. A livestock hauler under an oral contract with a livestock association to haul pigs ata flat rate per mile was informed by the association's agent that if he purchased a larger truck, he would be asked to do morehauling and would therefore make more than enough money to make the truck purchase worthwhile. When he failed to getmore hauls and was eventually terminated, the hauler sued the livestock association for breach of contract and interferencewith a business relationship, alleging that under his contract he was entitled to recover the balance of the cost of his truck, andentitled to actual and punitive damages for the tortious interference. The trial court granted summary judgment for the defendant.This court affirmed the breach of contract count, and reversed on the tortious interference count, holding that there was norequirement under Missouri law that a business relationship must be based on a valid contract, so the hauler could maintain anaction against the association for tortious interference with the hauler's agreement with another hauler to indefinitely extend alease under which the plaintiff provided this other hauler with truck and driving services. Cook v. MFA Livestock Ass'n, 700S.W.2d 526, 529.

Mo.App.1984. Quot. in sup., cit. in disc., com. (e) cit. in sup. Following the submission of subcontract bids for electrical work ona hospital's addition, the plaintiff alleged that the defendant's private negotiations, which resulted in a last-minute combinationbid contrary to bidding procedure, was a tortious interference with a business expectancy. The trial court found for the plaintiff.Reversing, this court noted that there was no evidence of wrongful means that amounted to physical violence, fraud, civil suits,or criminal prosecutions and held that the defendant's conduct was justified competition. Briner Elec. Co. v. Sachs Elec. Co.,680 S.W.2d 737, 741-743, appeal after remand 703 S.W.2d 90 (1985).

Neb.

Neb.2009. Cit. in ftn. Professor sued colleague for tortious interference with a business relationship, after university placed heron probation and required her to attend counseling based on a sexual harassment complaint made by colleague. The trial courtgranted summary judgment for defendant. Affirming, this court held, inter alia, that defendant's sexual harassment complaintwas justified because it provided truthful information to university; a person did not incur liability for interfering with a businessrelationship by giving truthful information to another, even if the facts were marshaled in such a way that they spoke forthemselves and the person to whom the information was given immediately recognized them as a reason for breaking a contractor refusing to deal with another. Recio v. Evers, 278 Neb. 405, 421, 771 N.W.2d 121, 133.

Neb.1982. Com. (g) cit. in sup. The plaintiff brought suit against the defendant, its former salesman, for tortious interference withbusiness relations. The defendant had anonymously mailed to the plaintiff's customers in Nebraska price discount informationwhich the plaintiff had sent to customers in another trade area. After the Nebraska customers learned about the discounts, the












plaintiff was forced to offer a discount program in Nebraska also. The trial court found for the defendant, and the plaintiffappealed. This court stated that because the defendant was a competitor of the plaintiff's, he was entitled to attempt to divertcustomers from the plaintiff. Even if the defendant's conduct was motivated partly by ill will, it was privileged if it was directedat least in part to advancement of his own competitive interest. Further, there was no evidence that any customers had ceaseddoing business with the plaintiff because of the defendant's actions. The trial court's judgment was affirmed. Miller ChemicalCo., Inc. v. Tams, 211 Neb. 837, 320 N.W.2d 759, 763.

N.H.

N.H.2000. Subsec. (1) and com. (i) quot. in sup. Employer sued competitor, alleging that competitor violated a restrictivecovenant in an employment contract between employer and its employees and intentionally interfered with employer'scontractual relationship with its employees. Trial court entered judgment on jury verdict for employer. This court reversed,holding that the mere fact that a competitor induced an at-will employee to leave his employer and work for that competitor didnot in and of itself constitute interference with contractual relations. The employer was required to demonstrate an improperpurpose, beyond lawful competition, on the part of competitor or the employee. Here, competitor did not tortiously interferewith employer's contracts, because competitor did not employ wrongful means and acted with a purpose of advancing its interestin competing with employer. Nat. Employment Service Corp. v. Olsten Staffing, 761 A.2d 401, 406.

N.J.

N.J.2013. Cit. in sup.; subsec. (1) cit. in sup., quot. in disc., and cit. in case quot. in disc.; subsec. (1)(b) cit. in sup.; com. (e) cit.and quot. in case cit. and quot. in disc.; com. (i) quot. in disc. and cit. in case quot. in disc. Discharged attorney sued successorattorney and others, alleging that defendants tortiously interfered with his contractual relationship with a client in a medical-malpractice case by wrongfully inducing her to discharge him and to substitute successor attorney in his place as counsel.The trial court denied defendants' motion to dismiss. The appellate division reversed and dismissed plaintiff's complaint withprejudice. Affirming as modified, this court held, inter alia, that plaintiff's allegations that he had a contingent-fee agreementwith client, that she arranged for a meeting, that she did not appear, and that she thereafter discharged him, asking him tosend her file to successor attorney and directing that he not contact her further, were insufficient to state a claim for tortiousinterference with prospective contractual relationship, where plaintiff failed to plead with specificity and particularity that themeans employed by defendants to induce client to discharge him were improper or wrongful. Nostrame v. Santiago, 213 N.J.109, 117, 123, 61 A.3d 893, 898, 901, 902.

N.J.Super.App.Div.

N.J.Super.App.Div.2011. Cit. in sup., subsecs. (1) and (1)(a)-(1)(d) cit. and quot. in sup., coms. (e) and (i) quot. in sup. Attorneydischarged by his client brought a claim for tortious interference against successor attorney that later settled client's medical-malpractice action. The trial court denied defendant's motion to dismiss the claim. This court reversed, holding that, where, ashere, there was no allegation that a successor attorney used wrongful means, such as fraud or defamation, to induce the clientto discharge the original attorney, such an action was not maintainable; because the contract between plaintiff and client wasterminable at will by client and concerned a matter involved in the competition between plaintiff and defendant, and defendant's“purpose” in allegedly inducing client to discharge plaintiff was at least in part to advance defendant's interest in competingwith plaintiff, plaintiff did not state a cause of action for tortious interference with contract under Restatement Second of Torts§ 768(1). Nostrame v. Santiago, 420 N.J.Super. 427, 434, 435, 22 A.3d 20, 24, 25.

N.J.Super.

N.J.Super.1996. Cit. in headnotes, quot. in sup. Redistributor of socket screws brought antitrust action against competitor andmanufacturer of screws, alleging that defendants engaged in vertical restraints of trade, and that competitor tortiously interfered









with plaintiff's prospective and continuing economic relations with manufacturer. Granting defendants' motions for summaryjudgment, the court held that plaintiff could not sustain its claim of vertical trade restraints, since it failed to establish thatdefendants conspired to fix wholesale prices in order to inflate the resale price to end users, and that competitor was entitled toinvoke the competitor's privilege defense to plaintiff's claim for tortious interference with prospective and continuing economicrelations. E Z Sockets v. Brighton-Best, 307 N.J.Super. 546, 704 A.2d 1364, 1365, 1370, affirmed 307 N.J.Super. 438, 704A.2d 1309 (1997).

N.J.Super.1989. Subsec. (1) quot. in disc., subsecs. (1)(a)-(d) cit. in disc. After a manufacturer of artificial vascular graftsdistributed a letter to buyers, making the true representation that its competitor's product was not approved by the Food and DrugAdministration, the competitor lost a great deal of business and sued the manufacturer for interference with contractual relationsinter alia. The court granted the defendant's motion for summary judgment, holding that, since the parties were competitors,the letter concerned a matter that was the subject of their competition and was distributed for the purpose of advancing theinterests of the defendant, and the defendant's action was not an unlawful restraint of trade nor employed wrongful means, thenthe defendant's act was not an interference with the contractual relations of the plaintiff. C.R. Bard v. Wordtronics Corp., 235N.J.Super. 168, 561 A.2d 694, 696.

N.J.Super.1985. Subsec. (1) quot. in sup. A nonexclusive dealer of video and audio equipment sued a manufacturer for hiringaway one of its key at-will service employees. The employee had been hired some time after attending servicing seminarsconducted by the manufacturer as per a dealership agreement. After receiving conflicting interrogatories from the jury, thetrial court entered judgment n.o.v. dismissing the dealer's claim, and denied the manufacturer's motion for summary judgment.The parties cross-appealed. This court affirmed the dismissal, holding that the manufacturer was not liable because it acted ingood faith, without malice, and without exploiting a confidential relationship. This court stated that the true issue presentedwas whether the manufacturer improperly interfered with the employee-employer relationship, given that both the dealer andmanufacturer were clearly competing for skilled technicians from the same labor pool. Avtec Industries v. Sony Corp. ofAmerica, 205 N.J.Super. 189, 500 A.2d 712, 715.

N.M.App.

N.M.App.1980. Cit. in disc., coms. (a) and (e) cit. in disc. and com. (b) quot. in part in disc. The plaintiff sued the defendantcompany because the defendant's employee, while visiting the plaintiff's business premises, allegedly convinced a prospectivecustomer to rent a machine from the defendant company and thereby interfered with a prospective contractual relationship.The lower court entered judgment for the defendant and the plaintiff appealed. This court stated that the interference must beimproper, not merely with justification or privilege. Competition may be a proper interference with prospective contractualrelations, although it cannot justify interfering with an existing contractual relationship. Here, the defendant could not be heldliable on the basis of improper motive because the defendant's motive was not to harm the plaintiff, but merely to do business ontheir own behalf. Likewise, the defendant could not be held liable on the basis of improper means. It is not tortious conduct toreach a prospective customer prior to a rival. The plaintiff argued that the defendant had acted improperly by taking advantage ofthe absence of the plaintiff's manager from his office, the defendant's failure to mind his own business and the defendant's failureto conduct himself as a guest in the plaintiff's place of business. The court stated that inasmuch as the parties were competitors,the defendant's means were not wrongful. The burden of coming forward with evidence and persuading the factfinder was uponthe plaintiff. Here, the plaintiff failed to carry that burden and the judgment of the trial court was affirmed. M & M Rental Tools,Inc. v. Milchem, Inc., 94 N.M. 449, 612 P.2d 241, 246.

N.Y.

N.Y.2007. Subsec. (2) cit. in ftn. Linen rental business sued competitor in federal court for tortious interference with existingcustomer contracts. The district court granted summary judgment for defendant, ruling that plaintiff failed to show that defendantacted with malice or illegality. The court of appeals certified to this court for review the question of whether a generalizedeconomic interest in soliciting business for profit constituted a defense to a claim of tortious interference with an existing












contract for an alleged tortfeasor with no previous economic relationship with the breaching party. Answering in the negative,this court held that a defendant who was simply a plaintiff's competitor and knowingly solicited its contract customers was noteconomically justified in procuring a breach of contract, but stressed that liability was limited to improper inducement of abreach. White Plains Coat & Apron Co., Inc. v. Cintas Corp., 8 N.Y.3d 422, 427, 835 N.Y.S.2d 530, 867 N.E.2d 381, 384.

N.Y.1980. Cit. in disc. and cit. generally in disc. and cit. and quot. in ftn., coms. (a) and (e) cit. in disc., com. (i) quot. in ftn.,cit. in diss. op. and cit. generally in diss. op. and subsec. (2) and com. (j) cit. in diss. op. The plaintiff entered into an exclusivedistributorship agreement with a Japanese lock manufacturer. An initial order for locks was placed by the plaintiff for a one-year period. Later, the defendant, the plaintiff's competitor, entered into an exclusive distributorship agreement with the samecompany, which then terminated the plaintiff's contract and defaulted on the initial order. The plaintiff received a judgmentagainst the Japanese company in an arbitration proceeding that also found that the exclusive contract was unenforceable beyondthe initial order because of a lack of mutuality. The plaintiff then brought this action against the defendant for tortious interferenceof contract rights. The defendant moved for summary judgment, which the lower court denied, and the plaintiff appealed. Thiscourt held that the issue of whether the defendant's conduct caused the Japanese company to default on its obligations wasa jury question that precluded summary judgment. However, the defendant was granted summary judgment on the issue ofwhether the defendant's conduct induced the Japanese company to terminate all performance under the contract. This issue wasprecluded by the collateral estoppel effect of the arbitration judgment. Furthermore, the court held that there was no showingof wrongful means employed by the defendant in interfering with the existing unenforceable contract and therefore no liability.Finally, the court held that the plaintiff was entitled to the full pecuniary loss of the benefits of the contract with which thedefendant interfered. The dissent agreed that the defendant's competitive interference would be justified if that contract wasterminable at will. However, the dissent stated that the contract was voidable and not terminable at will. The dissent statedthat when parties enter into an agreement that is terminable at will they do not expect to violate ethical precepts by inducingtermination. In an agreement that is voidable, the competitor induces the contracting party to abandon his ethical obligationto carry out the promise contained in the technically unenforceable agreement. Therefore, the dissent argued that was not anybasis for prohibiting competitive interference in contracts which are terminable at will while there is such a basis in voidablecontracts. Guard-Life Corp. v. S. Parker Hardware Mfg., 50 N.Y.2d 183, 428 N.Y.S.2d 628, 632-634, 636-638, 406 N.E.2d 445.

N.Y.Sup.Ct.App.Div.

N.Y.Sup.Ct.App.Div.2018. Com. (e) cit. in case quot. in sup. Former superintendent of a public school brought a claim fortortious interference with prospective economic advantage against teacher, alleging, among other things, that teacher spreadfalse rumors accusing her of financial impropriety, and pressured other teachers and staff to sign a petition to terminate heremployment. After a jury awarded superintendent damages, the trial court denied teacher's motions to set aside the verdict andfor a new trial. This court reversed, holding that the trial court's erroneous instructions enabled the jury to find that teacher hademployed wrongful means, a necessary element of a claim for tortious interference with prospective advantage, based solely onthe fact that teacher had made a false statement about superintendent. The court cited Restatement Second of Torts §§ 767 and768 in explaining that, while wrongful means included physical violence, fraud or misrepresentation, civil suits and criminalprosecutions, and some degrees of economic pressure, it did not include persuasion alone, even if it was knowingly directed atinterference with a contract. Ray v. Stockton, 80 N.Y.S.3d 569, 572.

N.Y.Sup.Ct.App.Div.2015. Cit. in conc. op. Operators of airport-retail shops filed a claim for, inter alia, tortious interferencewith prospective business advantage against daughter of man with whom plaintiffs had previously entered into a settlementagreement, alleging that defendant assisted her father in breaching the agreement by instigating a government investigationinto plaintiffs' operations and providing false and inaccurate information to investigators. The trial court dismissed plaintiffs'complaint. This court reversed in part, holding that plaintiffs met their burden of showing that the action had a substantial basisin law and fact. Citing Restatement Second of Torts § 768 for the elements of the claim, the concurring opinion argued thatdefendant was entitled to summary judgment because plaintiffs failed to show that defendant interfered by "unlawful means,"given that they did not establish that defendant's conduct amounted to a crime or an independent tort. Intl. Shoppes v. At theAirport, 16 N.Y.S.3d 72, 80, 131 A.D.3d 926, 935.









N.Y.Sup.Ct.App.Div.2015. Com. (e) quot. in case quot. in sup. Lawyer and law firm sued client to recover legal fees forservices rendered on client's behalf in two separate matters; client counterclaimed, alleging that lawyer tortiously interferedwith client's prospective business relations by contacting a third party with which client had entered into a settlement of thesecond matter and requesting that certain of the agreed-upon payments be made to law firm as counsel for client, rather thanto client. The trial court granted lawyer's motion to dismiss client's counterclaims. Affirming, this court held that, while clientarguably alleged that lawyer violated a disciplinary rule by contacting a settling party to protect law firm's attorney's fees afterhaving been discharged as client's counsel, client failed to allege that lawyer's acts constituted a crime or an independent tort, orthat lawyer acted solely for the purpose of harming client, as required to state a claim for tortious interference with prospectivebusiness relations under Restatement Second of Torts §§ 767 and 768. Law Offices of Ira H. Leibowitz v. Landmark Ventures,Inc., 15 N.Y.S.3d 814, 818.

N.Y.Sup.Ct.App.Div.2001. Cit. in disc. Employer sued former employee's new employer for tortious interference withcontractual relations and economic advantage by engaging in “employee raiding,” alleging that new employer, throughthe employee, was privy to confidential information regarding plaintiff's organizational structure and plaintiff's employees'experience, abilities, and salaries. Trial court granted defendants summary judgment. This court affirmed in part as modified,holding, inter alia, that plaintiff did not adequately set forth wrongful conduct by defendants that stated a cause of action fortortious interference. Plaintiff failed to allege that general information as to its employees' salary, position, and experiencewas not readily discoverable through public sources. Lockheed Martin Corp. v. Aatlas Commerce Inc., 283 A.D.2d 801, 725N.Y.S.2d 722, 725.

N.Y.Sup.Ct.App.Div.1988. Cit. in disc. An attorney sued a client to recover damages for his alleged wrongful termination asthe client's counsel. The trial court granted the defendant's motion to dismiss, except as to the plaintiff's claims for damagesbased on fraudulent representation and tortious interference with a contract. Reversing, this court granted the defendant's motionto dismiss the entire complaint, reasoning that a client should have the unbridled prerogative of termination, and that to permitthe termination of a client's retainer of counsel to be a basis for an action for damages when it was accomplished by appropriateand lawful means would inhibit the exercise of that prerogative. Kaplan v. Heinfling, 526 N.Y.S.2d 73, 76, appeal denied 72N.Y.2d 810, 534 N.Y.S.2d 938, 531 N.E.2d 658 (1988).

N.Y.Sup.Ct.App.Div.1987. Cit. in case quot. in sup., coms. (a) and (e) cit. in case quot. in sup. Retailers of Chinese languagevideotapes had a licensing agreement with the company that held the exclusive American rights to the videotapes, under whichthe company promised to negotiate a renewal in good faith. When the company transferred its licensing right to its competitor,which demanded higher prices that were unacceptable to the retailers, the retailers sued the competitor for tortious interferencewith contract and the company for breach of contract. The trial court granted the plaintiffs' motion for a preliminary injunction,requiring the defendant company to supply them with tapes according to the terms of their expired agreement. Reversing, thiscourt held that the plaintiffs failed to demonstrate that they were likely to prevail on the merits. The court stated that there wasa difference between interference with an existing contract and interference with a prospective contractual relation. It said thata competitor may interfere with prospective contractual relationships as long as wrongful means are not employed; such meansdo not include persuasion alone, although it is knowingly directed at interference with the contract. Yan's Video v. Hong KongTV Video Programs, 133 A.D.2d 575, 520 N.Y.S.2d 143, 145, 146.

N.Y.Sup.Ct.App.Div.1986. Cit. in sup. Partners in a law firm executed an agreement that permitted disassociating partners toremove, with the clients' consent, the files of those clients they had originated. When several partners left the original firm tostart a new one, they contacted clients they had originated as well as other clients of their old firm. The trial court granted theoriginal firm a preliminary injunction, restraining the new firm from contacting the other clients. Reversing, this court heldthat a client had an absolute right to terminate the attorney-client relationship at any time without cause. The court reasonedthat a competitor was free to use proper and legal means to induce termination of an at-will contract. Koeppel v. Schroder, 122A.D.2d 780, 505 N.Y.S.2d 666, 669.















N.Y.Sup.Ct.

N.Y.Sup.Ct.1997. Cit. in headnote, subsec. (2) cit. in disc. Waste removal company sued competitor for tortious interferencewith contract after one of its customers, in response to competitor's brochures offering better rates, terminated its waste removalagreement with company in order to do business with competitor. Competitor moved to dismiss. Granting the motion, the courtheld that, even if competitor knew of the agreement between company and customer, it could not be found liable for tortiousinterference where the alleged misconduct consisted of soliciting business from and targeting advertisements toward a pool ofpotential future clients. V. Marangi Carting v. Judex Enterprises, 171 Misc.2d 820, 655 N.Y.S.2d 832, 832, 833.

N.C.App.

N.C.App.1987. Com. (i) cit. but dist. An employer sued a former sales representative seeking the employee's compliance withnoncompetition provisions of his employment contract and requesting that the defendant's new employer refrain from interferingwith the noncompetition agreements. The trial court entered judgment for the plaintiff on the grounds that the restrictive covenantwas enforceable and that the second employer tortiously interfered with the agreement. Reversing, this court held that therestrictive covenant was unenforceable because it was not reasonably necessary to protect any legitimate interest that the firstemployer might have, and because the employee merely undertook to use in his new employment what he had acquired in theold. United Laboratories, Inc. v. Kuykendall, 87 N.C.App. 296, 361 S.E.2d 292, 300, judgment affirmed in part, reversed inpart 322 N.C. 643, 370 S.E.2d 375 (1988), appeal after remand 102 N.C.App. 484, 403 S.E.2d 104 (1991).

Ohio

Ohio, 1999. Cit. in headnote and syllabus, cit. in sup. and adopted, quot. in ftn., cit. in diss. op., coms. (a)-(i) cit. in diss. op. Alaw firm and its principal sued the firm's former associate and the associate's new firm for tortious interference with contract,among other claims. Trial court granted defendants summary judgment, but the appellate court reversed in part. This courtaffirmed, holding, inter alia, that establishment of the privilege of fair competition defeated a claim of tortious interference witha contract that was terminable at will. Fact issues existed as to whether defendants used wrongful means in competing againstplaintiffs. Dissent argued that defendants were protected by the fair competition privilege. Fred Siegel Co., L.P.A. v. Arter &Hadden, 85 Ohio St.3d 171, 707 N.E.2d 853, 860, 861, 866, 867.

Ohio App.

Ohio App.2019. Cit. in sup.; subsec. (1) cit. but dist.; subsec. (2) quot. in sup.; com. (h) quot. in sup. University sued, amongothers, competing university that hired plaintiff's former head men's basketball coach, alleging that defendant intentionallyand improperly procured coach's breach of his employment contract with plaintiff. The trial court granted summary judgmentfor defendant on plaintiff's claim for tortious interference with contract. This court reversed that portion of the decision andremanded, holding that a jury question existed as to whether defendant lacked a proper justification in procuring coach's breachof his employment contract with plaintiff. The court pointed out that it was undisputed that defendant knew that coach wascontractually obligated to continue working as plaintiff's head coach for an additional four years at the time of his breach,and that, under Restatement Second of Torts § 768, when a party is legally obligated to deal with another, a third party is notjustified by the mere fact of competition in inducing the party to commit a breach of that duty. Kent State University v. BradleyUniversity, 136 N.E.3d 774, 781.

Ohio App.2017. Subsecs. (1)(a)-(d) quot. in sup. In consolidated actions, provider of workers to subcontractor for a constructionproject filed, inter alia, a tortious-interference claim against general contractor, alleging that defendant terminated subcontractorand plaintiff from the project and then sought plaintiff's employees and independent contractors and encouraged them to continueworking on the project through a temporary agency and another employer instead of plaintiff. The trial court affirmed anarbitration panel's decision in favor of plaintiff as to his claim of intentional interference with business relations. Affirming,











this court held that the trial court did not abuse its discretion in finding that defendant's interference was not privileged as faircompetition. The court quoted Restatement Second of Torts § 768(1) in explaining the fair-competition privilege and reasonedthat defendant's conduct was improper because, among other things, there was no evidence or argument that employment ofskilled construction workers involved competition between the parties or that defendant's conduct was to advance its interestin competing with plaintiff. Thompson Thrift Construction v. Lynn, 89 N.E.3d 249, 271.

Ohio App.2015. Adopted in case cit. in sup., cit. in sup. Dentist sued competitor that hired another dentist who had sold hisdental practice to plaintiff, alleging, among other things, that defendant tortiously interfered with the goodwill provision in thesale contract by producing radio advertisements using the other dentist's name and voice. The trial court granted a directedverdict in favor of defendant. Reversing in part and remanding for further proceedings, this court held that there was a questionof fact as to whether defendant was entitled to a competitor's privilege with respect to the goodwill provision, because notimeframe applied specifically to the sale of the goodwill of the other dentist's business, and thus a question of fact remained asto whether a reasonable time had passed to allow the other dentist to establish defendant's patients as his own before defendantaired the radio advertisements. The court noted that the Ohio Supreme Court had adopted Restatement Second of Torts § 768,which established a privilege of fair competition that would defeat a claim of tortious interference with contract when a contractwas terminable at will. Ginn v. Stonecreek Dental Care, 30 N.E.3d 1034, 1045.

Ohio App.2003. Cit. in disc. (Erron. cit. as §§ 7 and 68.) Oil-products distributor sued former employee, supplier, and supplier'smarketing representative for, in part, tortious interference with business relations. Trial court granted defendants summaryjudgment. Affirming in part, reversing in part, and remanding, this court held that fact issue existed as to whether formeremployee interfered with plaintiff's relationship with its customers by improperly refusing a customer's order, or whether heacted properly; plaintiff, however, presented no evidence that supplier contributed to the tortious interference, or that it lostincome because of any actions by supplier's marketing representative. The court noted that establishment of privilege of faircompetition would defeat claim of tortious interference with contract where contract was terminable at will. Laurel Valley OilCo. v. 76 Lubricants Co., 154 Ohio App.3d 512, 517, 797 N.E.2d 1033, 1037.

Ohio App.2001. Quot. and cit. in sup. Massotherapy school sued former instructors and student alleging, inter alia, tortiousinterference with contractual relations after instructors opened new school and student transferred. The trial court grantedinstructors summary judgment. Affirming, this court held, inter alia, that instructors were independent contractors, and therewas no evidence that they interfered with contractual relationship between school and its former student prior to becomingcompetitors in the massotherapy education field. Northeast Ohio College of Massotherapy v. Burek, 144 Ohio App.3d 196,209, 210, 759 N.E.2d 869, 879, 880.

Ohio App.1996. Cit. in headnote, cit. in disc., quot. but dist., com. (b) cit. in disc. Ambulance service sued second ambulanceservice for tortious interference with its contract with county emergency medical dispatch organization, alleging that defendant's“run jumping” caused plaintiff to lose a considerable amount of business. The trial court directed a verdict for defendant, citingthe doctrine of the competitor's privilege. Reversing and remanding, this court held, in part, that defendant was not entitledto invoke the competitor's privilege, since medical dispatch organization's goal in contracting with each ambulance companyand dictating a systematic procedure for dispatching ambulances was to eliminate competition between such companies;consequently, a fact issue remained as to whether defendant's actions were improper. Brookeside Ambulance v. WalkerAmbulance, 112 Ohio App.3d 150, 678 N.E.2d 248, 249, 252, 253.

Ohio App.1988. Quot. in sup. Prospective purchasers were outbid for a third party's home by the real estate agent who hadproduced a buyer for the prospective purchasers' home, when the purchasers' bid was conveyed to their agent by the thirdparty's listing agent. The prospective purchasers sued, inter alia, the listing agent and agency for intentional interference witha prospective contractual relationship. The trial court dismissed for failure to state a cause of action. Affirming, this court heldthat the fact that the agent who had outbid plaintiff had been a special agent for the sale of plaintiff's home did not preclude thatagent from being a proper competitor. Walter v. Murphy, 61 Ohio App.3d 553, 573 N.E.2d 678, 680.














Or.

Or.1989. Subsec. (2) quot. in disc., cit. generally in treatise cit. in disc. An attorney sued rival lawyers for negligence andintentional interference with an economic relationship after a rival attorney allegedly advised the plaintiff attorney's clientsto terminate his employment. The rivals argued that their interference was privileged as acts of a mere competitor. The trialcourt dismissed the claim, and the appellate court affirmed, finding no allegations by the plaintiff that adequately negated thedefendants' privilege. Affirming in part, reversing in part, and remanding, this court held that the action against one of theinterfering attorneys was viable where he was allegedly motivated by ill will and allegedly knew that there was a conflict ofinterest in his representing the clients. The court also deemed viable allegations that the two other defendants told the clientsto change their versions of a prior proceeding to place the blame for the results on the plaintiff. Ramirez v. Selles, 308 Or.609, 784 P.2d 433, 435.

Or.App.

Or.App.2006. Cit. in disc., cit. in ftn., subsec. (1) quot. in disc., subsec. (1)(d) cit. in disc. and sup., com. (g) quot. in disc.and sup. and cit. in case cit. in sup. Hospital that had ceased operating brought, inter alia, claim for intentional interferencewith economic relations against competitor hospital, alleging that competitor interfered with hospital's business relationshipwith operator of outpatient surgical center and center's doctors by seeking to relocate doctors' practices to its campus. The trialcourt granted defendant's motion for a directed verdict on the claim. Affirming, this court held that plaintiffs' proof of improperpurpose was deficient as a matter of law, since plaintiffs adduced no evidence, circumstantial or otherwise, that would havepermitted the jury to infer that competitor's conduct was motivated by any purpose other than a competitive purpose—muchless that competitor acted solely from an improper purpose, such as to satisfy spite or ill will. Douglas Medical Center, LLC v.Mercy Medical Center, 203 Or.App. 619, 125 P.3d 1281, 1287, 1288.

Or.App.2001. Cit. in case quot. in disc. Master vendor for shoe company sued company for intentional interference witheconomic relations, inter alia. Trial court granted company summary judgment. This court reversed in part, holding, in part, thatfact issues existed as to intentional-interference claim and possible defense that company's conduct was privileged. Company'sconduct relative to industry standards was a fact issue on both the improper-means element and the damages element of theinterference claim. Although National Association of Temporary Staff and Services guidelines on transition from one vendorto another were advisory, evidence that members recognized guidelines as standard of ethics was admissible. Also, plaintiff'sexpert could assist jury on whether defendant used improper means under recognized industry standards. Volt Services Group,Div. Of Volt Management Corp. v. Adecco Employment Services, Inc., 178 Or.App. 121, 133, 35 P.3d 329, 337.

Or.App.1989. Subsec. (1) quot. in sup. After clients terminated an attorney's employment on the advice of rival lawyers, theattorney sued the other lawyers, among others, for intentional interference with an economic relationship, inter alia. The trialcourt granted judgment for the defendants. Affirming, this court held that the defendants were privileged to interfere with therelationship between the plaintiff and his clients because the defendants were business competitors of the plaintiff. Ramirez v.Selles, 96 Or.App. 340, 772 P.2d 952, 953, affirmed in part, reversed in part, and remanded 308 Or. 609, 784 P.2d 433 (Or.1989).See above case.

Or.App.1980. Quot. in sup. and com. (g) quot. in sup. The plaintiff car dealer discussed the purchase of a Fiat franchise wherebythe plaintiff would sell Fiat cars and parts to the public. The plaintiff, after being assured of receiving the franchise, submittedan order for cars and parts along with a check to Fiat. The defendant, the only car dealer of Fiat cars and parts in the Portlandarea, learned of the proposed franchise agreement and met with officers of Fiat to block it. Eventually Fiat decided not to sellany new franchises in the Portland area. The plaintiff claimed that the defendant had maliciously and intentionally interferedwith a prospective business relationship. The trial court entered a judgment for the plaintiff. The defendant argued that the entireaction was barred by res judicata and collateral estoppel principles based upon a previous judgment in a lawsuit brought bythe plaintiff in a federal court in Oregon. In that suit, the court granted summary judgment to the defendants. The defendantargued that this claim arose from the same set of operative facts as did the federal claim. This court stated that the federal












court was empowered to hear the state claim. Under the doctrine of pendent jurisdiction, when a federal claim and a state claimcomprise one constitutional case, a federal court may entertain both claims. However, this doctrine is discretionary, and a federalcourt can dismiss the state claim if such litigation would be a rehash of the federal suit, resulting in wasted time and money.This court stated that the defendant must have intentionally interfered with the proposed business relationship based upon animproper motive and by improper means, and must have damaged the plaintiff beyond the mere interference itself in orderto constitute intentional interference with a proposed business relationship. The plaintiff alleged that the defendant's impropermeans included monopoly, boycott and restraint of trade. The trial judge had concentrated only on the alleged improper motives,not the means. Motive had not been an issue in the federal suit. However, this court examined the improper motive claim andfound that the defendant's motive, to remain the sole dealer of Fiat cars and parts in the Portland area, was not improper. Becausethe plaintiff had failed to establish improper motive or illegal means, the defendant's interference was privileged. This courtreversed the trial court judgment. Ron Tonkin Gran Turismo v. Wakehouse Motors, 46 Or.App. 199, 611 P.2d 658, 664.

Or.App.1979. Quot. in ftn. in sup. The plaintiff real estate brokers brought this action for breach of contract or, in the alternative,for quantum meruit, claiming that the defendants failed to pay them their commission on a sale. A contract was entered intobetween the defendants and one of the plaintiffs who was to serve as a nonexclusive agent in the sale of apartment buildings.At this time the plaintiff was neither a real estate salesman nor a broker. The apartments were eventually sold but the plaintiffsnever received a commission. The defendants' motion for summary judgment was granted because the initial contract was illegaland void because the plaintiff was not a broker. This court affirmed and construed the applicable statute as stating that theplaintiff must have been a broker at the time of the contract and that it was not sufficient that he became licensed later. Thecourt also stated that the plaintiff could not have been an agent for a broker because he was not licensed as a salesman. Theplaintiffs' quantum meruit claim also failed because the court saw this as an attempt to circumvent the intentions of the statute.The lower court had entered nonsuit as to the second cause of action which alleged interference with business relations andunjust enrichment on the part of a second group of defendants. This court affirmed because there can be no tort liability incurredby one who interferes with contracts that are contrary to public policy. Also, because the plaintiffs had a nonexclusive right tosell, the fact that another party stepped in and earned the commission did not constitute unjust enrichment. Jolma v. Steinbock,40 Or.App. 657, 596 P.2d 980, 986.

Pa.

Pa.2011. Cit. in ftn. Insurance company sued employee benefits plan administrator, alleging that defendant tortiously interferedwith a contractual relationship between plaintiff and sales company by disclosing to sales company information about plaintiff'sbrokerage fee, after which sales company terminated its contract with plaintiff. The trial court entered judgment on a jury verdictfor plaintiff; the court of appeals reversed. Affirming, this court adopted Restatement Second of Torts § 772(a) to precludeactions for tortious interference with contractual relations where, as here, it was undisputed that the defendant's interferingstatements were truthful. Walnut Street Associates, Inc. v. Brokerage Concepts, Inc., 610 Pa. 371, 20 A.3d 468, 476.

Pa.Super.

Pa.Super.2009. Cit. in sup. §§ 768-773; cit. and quot. in ftn. Appointed broker of record for two self-funded employeebenefit plans provided by an employer brought tortious interference and other claims against third-party administrator of theplans, alleging that employer terminated plaintiff as its broker of record after defendant informed employer of the amount ofcommission plaintiff earned on one of the plans. The trial court entered judgment on a jury verdict in favor of plaintiff. Reversingand remanding for entry of judgment n.o.v. in favor of defendant, this court held, as a matter of first impression, that, becausedefendant's allegedly interfering statements to employer were truthful, they could not serve as the basis for a claim for tortiousinterference with contractual relationships. Walnut Street Associates, Inc. v. Brokerage Concepts, Inc., 982 A.2d 94, 98, 99.

Pa.Super.2008. Quot. in sup. and cit. in case cit. in sup., com. (b) quot. in sup. and cit. in case cit. in sup. Attorney and law firmthat represented former union for umpires employed by professional baseball leagues sued leagues, new union's attorney andlaw firm, individual umpires, and others, alleging, among other things, that defendants conspired to interfere with plaintiffs'










existing contractual relations with former union. The trial court granted summary judgment for defendants. Affirming, thiscourt held, inter alia, that plaintiffs' claims for interference with existing contractual relations against new union's attorney andlaw firm lacked any support in the evidentiary record. The court explained that competition between attorneys for clients wasnot per se improper for purposes of an interference with contractual relations analysis; rather, the conduct at issue had to bedetermined to be improper as for other persons, based on the factors set forth in Restatement Second of Torts § 767. Phillipsv. Selig, 959 A.2d 420, 431.

Pa.Super.1988. Quot. in disc., com. (b) quot. in disc. An employee who loaned money to his employer in return for a specifiedamount of interest per year and the understanding that the principal would be repaid after the employee left the company laterquit, started his own competing business, and sued his former employer to recover the debt. The employer defended by claimingthat the amount of interest on the loan was usurious and counterclaimed for triple the amount of interest paid and damages causedby alleged tortious interference with contractual relations. The trial court entered judgment on a jury verdict for the employeefor the unpaid balance of the loan. Affirming, this court held that estoppel was a defense to a usury claim; thus, the employerwas estopped from claiming damages because he had been the one to suggest the amount of interest in question. The court alsostated that the employer had not proved that the employee had acted improperly by soliciting the employer's customers whilestill working for him. Because there was no evidence of a restrictive covenant, there was nothing to stop the employee fromopening his own business after leaving the employer's company. Gilbert v. Otterson, 379 Pa.Super. 481, 550 A.2d 550, 554.

Pa.Super.1979. Tentative Draft 23 quot. in disc. Plaintiff, in the business of providing guard and security services, brought anaction against the defendant, a fellow competitor, for alleged intentional interference with plaintiff's business relationship witha hospital. The lower court entered an order dismissing the complaint and the plaintiff appealed. On appeal the court reversedand remanded, holding that where the complaint alleged that the defendant had induced the hospital not to continue its businessrelationship with the plaintiff, where the complaint failed to plead a wrongful means, but contained a mere legal conclusion thatthe competitor had conspired with other defendants to unlawfully interfere with the plaintiff's relationship with the hospital,and where the complaint failed to allege fraud with the requisite particularity, the complaint failed to state a cause of action,but the plaintiff would be given one more chance to state a cause of action. Allied Sec. Inc. v. Security Unlimited, Inc., 265Pa.Super. 297, 401 A.2d 1219, 1221.

Tenn.App.

Tenn.App.2007. Subsec. (1) cit. and quot. in sup. and quot. in case quot. in sup., subsec. (1)(b) quot. in sup. Retail carpet dealersued carpet manufacturer, competing dealer, and dealer's owner for tortious interference with business relationships and civilconspiracy, after manufacturer decided to allow only competitor to deal in a specific type of its carpets with a certain customerof both competitor and plaintiff. The trial court entered judgment on a jury verdict for plaintiff. This court reversed that portionof the judgment finding manufacturer liable for interference with plaintiff's relationship with customer, holding, inter alia, that,while plaintiff had a prospective or existing business relationship to sell carpet to customer, manufacturer's decisions on whatcompanies to deal with and what to sell them were privileged and not improper. Watson's Carpet and Floor Coverings, Inc. v.McCormick, 247 S.W.3d 169, 183, 184.

Tex.

Tex.2001. Quot. in ftn. in sup., com. (e) cit. in conc. op. Prospective land purchasers sued easement holder, which operatedretail store on adjacent land, alleging tortious interference with purchasers' prospective lease with food store company andbreach of easement agreements by unreasonably failing to approve site plan modification. The trial court entered judgmenton jury verdict for plaintiffs, awarding $1 million in actual damages and $500,000 in punitive damages. The appellate courtaffirmed actual damages award but remanded for retrial on punitive damages. Reversing, this court held, inter alia, that easementholder's attempt to acquire tract for its own use did not constitute tortious or illegal conduct that would support claim for tortiousinterference with prospective business relations. The concurring opinion noted that the right to compete would not entitle adefendant to make fraudulent misrepresentations. Wal-Mart Stores, Inc. v. Sturges, 52 S.W.3d 711, 719, 730.












Tex.App.

Tex.App.1993. Cit. in headnote, cit. and quot. in sup., subsec. (1)(b) cit. in sup., coms. (b), (e), (f), and (i) cit. in sup. A publisherof an advertising circular for cars and boats alleged that a newspaper targeted its customers for special deals by offering circular'sadvertisers half-price rates for newspaper ads on the same day that circular was distributed. Newspaper claimed that it offeredthe half-price deal to all of its customers; however, circular presented evidence that a certain company that did not advertisein circular had to learn of newspaper's special rate from an independent source and had to request it, and there was only oneother dealer who did not do business with circular who received the special rate. Trial court entered judgment on jury verdictfor plaintiff, determining that defendant tortiously interfered with plaintiff's contractual and business relationships. Reversingand remanding, this court held that, although jury's finding that defendant targeted plaintiff's customers was not against weightof evidence, defendant's offering special deals to customers subject to competition was not tortious behavior and there was noevidence that defendant intentionally caused any other third person to refuse to deal with plaintiff. Caller-Times Pub. v. TriadCommunications, 855 S.W.2d 18, 19, 21-23.

Tex.App.1991. Com. (i) quot. in sup. (Cit. as § 768(i).) A newspaper publisher sued a rival newspaper and its parent company,alleging, inter alia, that the defendants tortiously interfered with the plaintiff's existing contract with a press syndicate whenthe defendants entered into an exclusive five-year contract with the syndicate, which had provided comics and columns tothe plaintiff for nearly 20 years. The trial court entered judgment on a jury verdict for the defendants but refused to submitto the jury the plaintiff's claim for tortious interference with an existing contract. Affirming, this court held that there was noevidence that the defendants interfered with any of the plaintiff's contractual rights. The court said that the plaintiff's interestin the press syndicate's features was that of a prospective contractual relation for which the plaintiff had no assurance, onlyan expectancy, under contracts that were terminable at will, and that the defendants were free to obtain the future benefits fortheir own competitive advantage by offering the syndicate better terms. Times Herald Printing v. A.H. Belo Corp., 820 S.W.2d206, 215.

Tex.App.1987. Subsec. (1) cit. in ftn. After an employee of a business that specialized in obtaining medical records for attorneysleft her employer and accepted employment with a competitor, the former employer sued the competitor for damages for tortiousinterference with a contractual and business relationship. The trial court entered judgment on a jury verdict for the plaintiff.Affirming in part, reversing in part, and remanding, this court held that a contract terminable at will may be the subject matter ofa tortious interference claim and that the defendant was not entitled to a reduction of the award by the amount of the judgmententered against the employee. Champion v. Wright, 740 S.W.2d 848, 854.

Tex.App.1987. Subsec. (2) quot. in disc. (erron. cit. as Restatement (Second) of Contracts), com. (e) cit. in sup. After a pressrelease reported that a prospective purchaser had agreed to buy an oil company, another interested party made a successful higherbid. The prospective purchaser then sued the successful buyer for tortious interference with its contract for a stock purchase-merger. The trial court found for the plaintiff. Affirming, this court held, inter alia, that there was sufficient circumstantialevidence to support the jury's finding that the defendant had knowledge of the contract with which it interfered, and that itcould be held liable even if it did not have full knowledge of the detailed terms of the contract or of the legal ramificationsof those terms. The court stated that the jury could have reasonably decided that when the defendant compared the plaintiff'smemorandum of agreement with the oil company's press release announcing the transaction between itself and the plaintiff, thedefendant concluded that a binding purchase agreement had been reached. Texaco, Inc. v. Pennzoil, Co., 729 S.W.2d 768, 829,cert. dismissed 485 U.S. 994, 108 S.Ct. 1305, 99 L.Ed.2d 686 (1988).

Tex.App.1986. Cit. in sup., subsec. (2) quot. in sup. A trading stamp company brought a tortious interference with contract actionagainst a competitor, alleging that it had exclusive trading agreements with a group of independently owned grocery stores. Theplaintiff also alleged that when friction arose between it and the store owners, the defendant would intentionally and willfullyinterfere with its contracts with the store owners. The trial court entered judgment in favor of the plaintiff. Affirming, this court










stated that the right of competition did not justify a person knowingly and deliberately, for his own benefit or advantage, to inducea breach of contract by offering lower prices. Top Value Enterprises, Inc. v. Carlson Marketing Corp., 703 S.W.2d 806, 809.

Utah

Utah, 1982. Subsec. (d) quot. in part in ftn., com. (g) quot. in part in ftn. The seller of a furniture business sued the buyer torepossess the business, to terminate the buyer's lease on the business premises, and to obtain a deficiency judgment. The buyercounterclaimed for intentional interference with contractual relations. The trial court entered judgment on a verdict against theseller, but reduced the punitive damages awarded. Both parties appealed. After first ruling that the trial court judgment couldnot be affirmed on the basis of the seller's alleged interference with the contract between the seller and buyer, the court affirmedthe judgment on the basis of intentional interference with prospective contractual relations. Stating that the conduct of the sellerinterfered with the buyer's business while it still was operating, and actively contributed to the buyer's decision to close thebusiness, the court held that the buyer had an actionable claim. The court adopted an approach in which the plaintiff was obligedto prove that the defendant had intentionally interfered with the his existing or potential economic relations for an improperpurpose or by improper means, thereby caused him injury. While a trial court jury instruction did not mirror the elements thiscourt had specified as necessary to establish the plaintiff's claim, it actually imposed a heavier burden of proof upon the plaintiffand was therefore not reversible error. The court then held that the defendant had indeed used improper means to inflict injuryto the plaintiff's business through interference with its economic opportunities, as the defendant had prosecuted groundless suitsagainst the plaintiff and had breached the contract for the sale of the business with the immediate purpose of inflicting injuryto the plaintiff. Finally, the court modified the judgment to reinstate the full amount awarded by the jury as punitive damages,and affirmed as modified. Leigh Furniture and Carpet Co. v. Isom, 657 P.2d 293, 307.

Vt.

Vt.2010. Subsec. (1)(b) quot. in sup. Construction company sued former vice-president/corporate director and rival companyformed by director, alleging interference with business relations in connection with several projects commissioned by clientsoriginally belonging to plaintiff that, following director's termination, were completed wholly or partially by defendants. Thetrial court entered judgment on a jury verdict in favor of plaintiff. Affirming, this court held that it was reasonable for the jury toinfer that director abused his position as a trusted, high-ranking employee at plaintiff to surreptitiously obtain work for himselfby, among other things, scheming to foment critical dissatisfaction between plaintiff and its clients in an effort to steer the clientsaway from plaintiff and towards himself. J.A. Morrissey, Inc. v. Smejkal, 2010 VT 66, 188 Vt. 245, 6 A.3d 701, 709.

Vt.1996. Cit. in headnotes, cit. in disc., quot. in ftn., com. (e) cit. in disc. Broker of used computer equipment sued his supplierfor tortious interference with contract and for tortious interference with prospective contractual relations after supplier beganselling equipment directly to customers that broker had solicited, and refused to pay broker certain commissions. The trialcourt entered judgment on a jury verdict for broker. Affirming in part, reversing in part, and remanding, this court held thatsupplier intentionally and improperly interfered with broker's contract to sell a computer system to a publishing company whenit contacted company and sought direct payment from it; that the lower court should have granted supplier's motion for directedverdict or for judgment n.o.v. on the claim for tortious interference with prospective contractual relations, since broker did nothave existing business relations with the customers at issue; and that the lower court should have instructed the jury that brokerwas entitled to a commission on one of his largest contracts where supplier's conduct allegedly killed the deal. Gifford v. SunData, Inc., 686 A.2d 472, 472, 475.

Vt.1984. Subsec. (1) cit. but dist. and quot. in ftn. The plaintiff architect contracted with the owner of land to design acondominium project. After part of the project had been completed, the owner contacted and contracted with the defendantarchitectural firm for alternative designs which would reduce the cost of the project. The owner then cancelled the contract withthe plaintiff, and the defendant completed the project. In affirming a judgment against the defendant for tortious interferencewith contract rights and conversion of drawings, the court held that protection against interference exists even where the contractis terminable at the will of either party. Williams v. Chittenden Trust Co., 145 Vt. 76, 484 A.2d 911, 914-915.









Va.

Va.1997. Cit. in sup. §§ 768-771 and 768-772. A bidder on a department of social services project to privatize two child-support enforcement offices sued a competing bidder, alleging that defendant had tortiously interfered with plaintiff's contractexpectancy because false allegations in its protest of the department's decision to award the contract to plaintiff resulted in aninvestigation and the cancellation of the notice of intent to award the contract to plaintiff. The trial court entered judgment fordefendant, holding that plaintiff failed to show that defendant acted with malice. This court reversed and remanded, holdingthat the trial court did not apply the correct standard for determining whether plaintiff had established a prima facie case fortortious interference with contract expectancy. Plaintiff was not required to show malice or any other egregious conduct. Whileplaintiffs in these actions had to show that the methods of interference were intentional and improper, defendants assertingcertain affirmative defenses were required to prove that those methods were not wrongful. Maximus v. Lockheed Info. Mgmt.Systems, 493 S.E.2d 375, 379.

Va.1985. Cit. in disc., cit. in sup. An architect who was hired by the city to evaluate and renovate government properties broughtsuit for defamation and tortious interference with contract against a competitor who wrote to the city council that the architectwas inexperienced and charged excessive prices, allegedly causing the city to terminate his contract. The jury rendered a verdictfor the plaintiff on both counts, but the trial court entered judgment n.o.v. This court affirmed in part, holding that the defendant'scharges that the plaintiff was inexperienced and charged excessive fees were statements of opinion as a matter of law and thusnot actionable as defamatory words. This court also reversed in part, holding that there was sufficient evidence for the jury toconclude that the defendant intended to interfere with the plaintiff's contract and that his conduct was the proximate cause ofthe plaintiff's termination. It was unnecessary to prove malice, and financial self-interest was not a justification because thedefendant's conduct was intentional. Chaves v. Johnson, 230 Va. 112, 335 S.E.2d 97, 103.

W.Va.

W.Va.1983. Cit. in disc., quot. in ftn. in disc. A former employee sued a bank for a declaratory judgment that a noncompetitivecovenant in its employment contract was unreasonable, and additionally sought damages in the action. After the trial court heldfor the employee, the bank appealed. This court affirmed in part, reversed in part, and remanded. The court ruled that a courtcould award damages in a declaratory judgment action, but that remand was necessary to allow the employee to allege tortiousinterference with business relationships and to allow proof on that issue as a prelude to any damage award. The court notedthat there could be negligent or intentional interferences, and that there were instances in which no liability attached to suchinterference because it was privileged as a competitive device, as a protection of financial interests, or as requested advice.Torbett v. Wheeling Dollar Sav. and Trust Co., _ W.Va. _, 314 S.E.2d 166, 172.

Wis.App.

Wis.App.1980. Cit. in sup. (note: The court discussed s 768, Tentative Draft 14, Restatement of Torts, Second). The plaintiffmailed approximately 1,000 flyers advertising a book he had written entitled, “I'm Fed Up With the Cost of Finance CompanyLoans.” The flyer offered information on how to save substantially on loans if the recipient mailed $10 to a post office box inWisconsin. One of these flyers was received by the defendant finance corporation. The president of this company asked thedefendant Better Business Bureau in Milwaukee to identify the author of these flyers. The Better Business Bureau sent theplaintiff a standard Better Business Bureau information sheet. The plaintiff filled it out and returned it to the Better BusinessBureau along with the request that it keep the plaintiff's employer, another finance corporation, confidential. The Better BusinessBureau gave the defendant finance company the plaintiff's name and informed it that the plaintiff was employed by a financecompany but it did not specifically identify the plaintiff's employer. Nonetheless, the defendant finance company ascertained theidentity of the plaintiff's employer through other sources. It then notified the plaintiff's employer of the plaintiff's flyer and book.The plaintiff was subsequently discharged by his employer. The plaintiff then instituted this action for tortious interference with









his contractual relations with his employer against the defendants finance company and Better Business Bureau. The jury foundfor the plaintiff and concluded that the defendants had intentionally and improperly interfered with the employment contractbetween the plaintiff and his employer. The trial court subsequently directed a verdict in favor of the defendants. The appellatecourt affirmed. The trial court correctly instructed the jury in accordance with the Restatement that one who intentionallycauses a third person not to perform a contract by giving truthful information does not interfere improperly with a contractualrelationship. The transmission of truthful information is privileged, does not constitute improper interference, with a contractand cannot subject one to liability for tortious interference with a contract. The plaintiff testified that he could not think of anydivulgence by anyone in connection with the entire affair that was not true. The trial court, therefore, correctly directed theverdict in favor of the defendants. Liebe v. City Finance Co., 98 Wis.2d 10, 295 N.W.2d 16, 19, 20.

Wyo.

Wyo.1996. Cit. in disc. A medical testing service sued an independent tester for alleged breach of contract in directly billingclients. The independent tester counterclaimed for breach of contract and tortious interference with contractual relations. Trialcourt granted partial summary judgment to defendant and entered judgment on a jury verdict for defendant on his counterclaims.This court affirmed, holding, inter alia, that substantial evidence was presented enabling the jury to determine that testingservice's conduct was intentional and improper interference with the contracts between defendant and his network of independentcontractor examiners. By pretext, testing service intentionally withheld the funds defendant needed to pay the examiners and,during that time, used defendant's failure to pay not only to induce the examiners to work for plaintiff, but to refuse to work fordefendant. Examination Mgmt. Services v. Kirschbaum, 927 P.2d 686, 698.

Wyo.1994. Quot. in sup., com. (g) cit. in sup. Former executive director sued nonprofit corporation for intentional interferencewith prospective contractual relations, among other claims, after his termination. Plaintiff contended that defendant repeatedlytried to block his employment with others and tried to exclude him from a travel industry conference. The trial court granteddefendant summary judgment. This court affirmed, holding that defendant's actions did not constitute intentional interferencewith prospective contractual relations as a matter of law. It said that, while plaintiff sought employment at two places inparticular, defendant sought potential economic gain for itself by offering to perform the work plaintiff desired; as a competitorat the travel industry conference, defendant also acted to protect its business interests. The court said that, while defendant'smotives might be suspect, as a nonprofit corporation engaged in travel promotion, it had a right to compete with plaintiff in thisbusiness. Wilder v. Cody Country Chamber of Commerce, 868 P.2d 211, 225, appeal after remand 933 P.2d 1098 (Wyo.1997).

Wyo.1989. Cit. in spec. conc. op. A collection attorney sought to collect a delinquent account on behalf of his client, a hospital.When the debtor's attorney questioned the reputation of the collection attorney and the wisdom of the hospital for employing him,the collection attorney sued the debtor's attorney for tortious interference with a contract pursuant to § 766A of the Restatement(Second) of Torts on the ground that it was burdensome for him to repair his relationship with the hospital. The trial courtgranted judgment for the defendant. Affirming, this court stated that proof under § 766A only that performance became moreexpensive and burdensome was too speculative and subject to abuse to provide a meaningful basis for a cause of action andheld that an action for tortious interference with a contract required an actual breach, failure to perform, or termination of thecontract. A specially concurring opinion argued that a tort under § 766A should be recognized, but not in this case. Price v.Sorrell, 784 P.2d 614, 618.

Restatement of the Law - Torts © 1934-2021 American Law Institute.Reproduced with permission. Other editorial enhancements © Thomson Reuters.

End of Document © 2021 Thomson Reuters. No claim to original U.S. GovernmentWorks.







§ 768 Competition as Proper or Improper Interference

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