In business litigation, tortious interference claims arise when another business or person unjustly interferes with the business or contractual relationships of another business. “The tort of tortious interference teeters between two competing values – the desire to protect the reasonable expectations of the parties to a business relationship on one hand, and the need to avoid excessive restrictions on freedom of competition on the other.” Jay v. Mobley, 783 So. 2d 297 (Fla. 4th DCA 2001). However, certain types of interference may qualify as “privileged” or “justified” when the party acts in its own financial interests and the interference does not involve physical violence, misrepresentations, intimidation, conspiratorial conduct, illegal conduct, or threats of illegal conduct. Peter Mavrick is a Fort Lauderdale business litigation attorney, and represents clients in business litigation in Miami, Boca Raton, and Palm Beach. The Mavrick Law Firm represents businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.
“Four elements are required to establish tortious interference with a contractual or business relationship: (1) the existence of a business relationship or contract; (2) knowledge of the business relationship or contract on the part of the defendant; (3) an intentional and unjustified interference with the business relationship or procurement of the contract’s breach; and (4) damages to the plaintiff as a result of the interference.” Howard v. Murray, 184 So. 3d 1155 (Fla. 1st DCA 2015). The alleged interference must also be “unjustified” for a business to recover under Florida law. However, “Florida law recognizes the principle that actions taken to safeguard or protect one’s financial interest, so long as improper means are not employed, are privileged.” Johnson Enters. v. FPL Group, Inc., 162 F.3d 1290 (11th Cir.1998). “Florida ‘recognizes competition between competitors, and if there is an interference with a non-exclusive right[,] this is a privileged interference.’” Jay v. Mobley, 783 So. 2d 297 (Fla. 4th DCA 2001).
“Justification or privilege to interfere with a contract is a defense to a tortious interference claim.” Abele v. Sawyer, 750 So. 2d 70 (Fla. 4th DCA 1999). Justification or privilege to interfere with a contract is a matter of law that must be raised as an affirmative defense. Southeastern Integrated Med., P.L. v. North Fla. Women’s Physicians, P.A., 50 So. 3d 21 (Fla. 1st DCA 2010). “Two privileges have been recognized in defense of a tortious interference claim.” Weisman v. Southern Wine & Spirits of Am., Inc., 297 So. 3d 646 (Fla. 4th DCA 2020).
The first privilege exception to tortious interference under Florida law is the competition privilege. This privilege is generally applied where two companies compete over a contract or business. Weisman v. Southern Wine & Spirits of Am., Inc., 297 So. 3d 646 (Fla. 4th DCA 2020). Florida “recognizes competition between competitors, and if there is an interference with a non-exclusive right this is a privileged interference.” Int’l Expositions, Inc. v. City of Miami Beach, 274 So. 2d 29 (Fla. 3d DCA 1973). To defend using this privilege, a defendant must prove four distinct elements:
(1) One who intentionally causes a third person not to enter into a prospective contractual relation with another who is his competitor . . . does not interfere improperly with the other’s relation if . . .
(a) the relation concerns a matter involved in the competition between the actor and the other;
(b) the action does not employ wrongful means;
(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.
Weisman v. Southern Wine & Spirits of Am., Inc., 297 So. 3d 646 (Fla. 4th DCA 2020).
The second privilege to tortious interference under Florida law is the “protection” privilege to interfere with one’s own financial and contractual interest. Salit v. Ruden, McClosky, Smith Schuster & Russell, P.A., 742 So. 2d 381 (Fla. 4th DCA 1999). To defend using this privilege, a defendant must show improper means were not employed. Salit v. Ruden, McClosky, Smith Schuster & Russell, P.A., 742 So. 2d 381 (Fla. 4th DCA 1999). The burden to defeat the privilege then shifts to the party that brought the tortious interference claim to show improper means were employed. Salit v. Ruden, McClosky, Smith Schuster & Russell, P.A., 742 So. 2d 381 (Fla. 4th DCA 1999). “Improper means” for purposes of the protection privilege has been interpreted as “doing no more than insist[ing] upon existent legal rights in a permissive way.” Horizons Rehab., Inc. v. Health Care & Ret. Corp., 810 So. 2d 958 (Fla. 5th DCA 2002). For example, in Horizons Rehab., the court held that the defendant’s actions were not improper where the defendant learned of the plaintiff’s ongoing litigation and broke off negotiations for continued services. Horizons Rehab., Inc. v. Health Care & Ret. Corp., 810 So. 2d 958 (Fla. 5th DCA 2002).
Peter Mavrick is a Fort Lauderdale business litigation lawyer, and represents clients in Miami, Boca Raton, and Palm Beach. This article does not serve as a substitute for legal advice tailored to a particular situation.