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The tort of “tortious interference with business relationship” is phrased in various ways, including “tortious interference with contractual relationship,” “intentional interference with prospective economic advantage,” and “tortious interference with advantageous business relationship.”  However nominally titled, the tortious interference tort is defined by its four basic elements that a party must prove: (1) the existence of a business relationship under which the plaintiff has legal rights, (2) the defendant’s knowledge of the relationship, (3) the defendant’s intentional and unjustified interference with the relationship, and (4) damages resulting from breach of the relationship.  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 business torts, including claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment law, and other legal disputes in federal and state courts and in arbitration.

To prosecute or defend against this tort, it is helpful to understand the underlying policy tensions that have justified this tort and its affirmative defenses.  In Jay v. Mobley, 783 So.2d 297 (Fla. 4th DCA 2001), Florida’s Fourth District Court of Appeal explained that, “[t]he tort of tortious interference teeters between two competing values—the desire to protect the reasonable expectations of the parties to a business relationship on the one hand, and the need to avoid excessive restrictions on freedom of competition on the other.”   Competitors sometimes file lawsuits wherein they use the tortious interference tort to inappropriately gain a competitive advantage.  Accordingly, Florida law recognizes two affirmative defenses where a defendant’s actions are deemed “privileged” and therefore immune from liability.

The first privilege is the competition privilege, which generally applies where two companies compete over a contract or business.  Jay v. Mobly, supra, explained that, “Florida ‘recognizes competition between competitors, and if there is an interference with a non-exclusive right[,] this is a privileged interference.’”  To defend against a tortious interference claim using this “competition privilege,” the defendant must prove four distinct elements set forth in the Restatement (Second) of Torts(1979), which provides that: “(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 actor does not employ the wrongful means[;] …

(c) his action does not create or continue an unlawful restraint on trade[;] and

(d) his purpose is at least in part to advance his interest in competing with the other.”

The second privilege against a tortious interference lawsuit is when the defendant interferes for the protection of his/its own financial and contractual interests.  “Under Florida law, a party is privileged to act, and his actions are non-actionable, if the actions are taken to safeguard or promote the party’s own financial interest … Such conduct is privileged, and the actor is not liable for doing no more than insist upon existent legal rights in a permissive way, even though he is aware that such insistence may cause emotional distress.”  Horizons Rehabilitation, Inc. v. Health Care and Retirement Corporation, 810 So.2d 958 (Fla. 5th DCA 2002).  “To defend using this privilege, the defendant must show it did not employ improper means.  Salit v. Ruden McClosky, Smith, Shuster & Russell, P.A., 742 So. 2d 381 (Fla. 4th DCA 1999).  For example, in Weisman v. Southern Wine & Spirits of America, Inc., 297 So.3d 646 (2020), the appellate court held the former employer’s (Southern Wine) actions were “privileged and a matter of legal right” and therefore affirmed the trial court’s dismissal of the tortious interference claim.  In Weisman, Southern Wine had agreed to a Consent Order that required it to refrain from conducting business with a third-party marketing company that violated any federal or Florida regulations concerning alcohol distributor/retailer relationships.  When Southern Wine learned that its former employee, Weisman, engaged in this type of conduct and continued to commit fraud against it, Southern Wine acted to protect its own financial and contractual interests.  It did so by sending a memorandum notifying retailers that it was unable to do business with its former employee.  Similarly, in Horizons Rehabilitation, Inc. v. Health Care and Retirement Corporation, Health Care Retirement Corporation (Health Care) was sued for tortious interference because it would not agree to enter a new services contract and was unable to provide a legal opinion to another company.  The appellate court determined that Health Care’s “actions were privileged and a matter of legal right.” Therefore, the affirmative defense to protect its own financial and contractual interests barred the claim against Health Care for tortious interference.  Accordingly, the appellate court affirmed the trial court’s dismissal of the plaintiff’s tortious interference claim.

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.

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