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Plaintiffs often assert the common law cause of action of tortious interference in conjunction with other claims associated with unlawful competition. This is because the elements needed to prove the common law tort frequently use the same or substantially similar facts as those needed to establish breach of a restrictive covenant and other claims of unfair competition. For example, a plaintiff asserting a tortious interference claim must prove the existence of a business relationship between itself and a third person, the defendant’s knowledge about the relationship, the defendant’s intentional and unjustified interference with the relationship that induces the third person not to perform, and damage. Seminole Tribe of Florida v. Times Pub. Co., Inc., 780 So. 2d 310 (Fla. 4th DCA 2001). And a plaintiff asserting breach of a non-compete agreement must similarly prove the defendant breached the non-compete agreement by conducting business with the plaintiff’s customer and damages resulting from business loss. See Fla. Stat. 542.335 (requiring the plaintiff to plead and prove one or more legitimate business interests including the existence of present or prospective customers).  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 law, and other legal disputes in federal and state courts and in arbitration.

A subtle difference lies with the tortious interference claim that can make it more difficult to establish than other, similar claims. A tortious interference claim requires proof that the defendant  induced cessation of business between the plaintiff and a third party. See Mortgage Now, Inc. v. Guaranteed Home Mortg. Co., Inc., 545 Fed. Appx. 809, 811 (11th Cir. 2013) (“No liability will attach unless it is established that the defendant intended to procure a breach.”). However, other claims typically require the plaintiff to merely establish damages resulting from the severed relationship. See, e.g., Vela v. Kendall, 905 So. 2d 1033, 1035 (Fla. 5th DCA 2005) (awarding “damages for the violation of the restrictive covenant during the two-year period of its viability.”)

The inducement element forces the plaintiff to provide evidence demonstrating the third party would not have severed its relationship with the plaintiff but for the defendant’s conduct. Cedar Hills Properties Corp. v. E. Fed. Corp., 575 So. 2d 673 (Fla. 1st DCA 1991) (To “maintain an action for tortious interference… with contractual rights, a plaintiff must prove that a third party interfered with a contract by ‘influencing, inducing or coercing one of the parties to … breach the contract, thereby causing injury to the other party.’”). Providing inducement evidence can be challenging when the third-party was predisposed to terminating its relationship with the plaintiff.

Two Florida authorities illustrate this point. In Farah v. Canada, 740 So. 2d 560 (Fla. 5th DCA 1999), a real estate agent sued a homeowner for tortious interference because the homeowner sold her home directly to the real estate agent’s client without paying commission to the real estate agent. The real estate agent informed the homeowner that he had a potential buyer for the property, and the homeowner insisted she be provided the potential buyer’s contact information. The real estate agent provided the information and the homeowner entered into a sale contract with the buyer. The court rejected the real estate agent’s tortious interference claim because “there [was] no evidence that he induced the [buyer] to breach a listing agreement…” Id. In Fiberglass Coatings, Inc. v. Interstate Chem., Inc., 16 So. 3d 836 (Fla. 2d DCA 2009), the court ruled that “One does not induce another to commit a breach of contract with a third person… when he merely enters into an agreement with the other with knowledge that the other cannot perform both it and his contract with the third person,” without specifying the facts. Both cases indicate that the plaintiff must do more than simply allege its relationship with the third-party ended. The plaintiff must prove the defendant caused the third-party to ends its relationship with the plaintiff.

A plaintiff may want to buttress its tortious interference claim when possible, with other causes of actions in light of the difficulties that might arise when trying to prove the defendant caused inducement. Asserting varied claims relating to the same facts can militate against the complications associated with the tortious interference claim. And since the facts giving rise to tortious interference usually give rise to other claims too, it makes sense to bring the broadest array of claims.

Peter Mavrick is a Fort Lauderdale business litigation attorney, 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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