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Tortious interference is a common business tort whereby the defendant unlawfully interferes with the plaintiff’s business relationship or contractual relationship. The elements of tortious interference are:

(1) the existence of a business relationship [or contractual relationship] between the plaintiff and a third person, not necessarily evidenced by an enforceable contract, under which the plaintiff has legal rights; (2) the defendant’s knowledge of the relationship; (3) an intentional and unjustified interference with the relationship by the defendant which induces or otherwise causes the third person not to perform; and (4) damage to the plaintiff resulting from the third person’s failure to perform.

Seminole Tribe of Florida v. Times Pub. Co., Inc., 780 So. 2d 310 (Fla. 4th DCA 2001). Peter Mavrick is a Miami business litigation attorney, and represents clients in Fort Lauderdale, 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.

Establishing intentional and unjustified interference is not always easy because the definition is nebulous. What constitutes an intentional and unjustified interference? Where does the law draw a preverbal line in the sand between a justified interference and an unjustified interference?

It is sometimes difficult to demonstrate that particular conduct constitutes intentional and “unjustified” interference because there is no bright-line test. Therefore, some courts look to the Restatement of Torts to determine whether conduct is unjustified. The Restatement requires the court to conduct an inquiry on a case-by-case basis construing the judgment and choice of values in each individual situation. Restatement (Second) of Torts § 767 cmt. b (1979) (The issue of whether the interference was improper depends “upon a judgment and choice of values in each situation”). A non-exhaustive list of factors to consider when determining whether the conduct is unjustified include the following:

(a) the nature of the actor’s conduct,

(b) the actor’s motive,

(c) the interests of the other with which the actor’s conduct interferes,

(d) the interests sought to be advanced by the actor,

(e) the social interests in protecting the freedom of action of the actor and the contractual interests of the other,

(f) the proximity or remoteness of the actor’s conduct to the interference and

(g) the relations between the parties.

Using these principles, Florida’s Fourth District Court of Appeal, in Seminole Tribe of Florida v. Times Pub. Co., Inc., 780 So. 2d 310 (Fla. 4th DCA 2001), determined that the defendant’s conduct did not constitute tortious interference. In the Seminole Tribe case, defendant was a journalist who disclosed confidential information about the plaintiff. That disclosure caused the plaintiff’s relationships with employees and agents to deteriorate. The plaintiff sued the journalist for tortious interference.  The appellate court, however, rejected the plaintiff’s claim because “the [journalist]’s actions were not designed to terminate the ongoing relationship between the [plaintiff] and its employees and agents.”  The journalist was not trying prevent the plaintiff’s employees and agents from interacting with the plaintiff and the journalist did not “resort to methods tortious in themselves” like defamation, bribery, physical violence, fraudulent misrepresentation and threats, or intimidation.

The privilege competition defense is another way to demonstrate that allegedly unjustified conduct is actually justified. Royal Typewriter Co. v. Xerographic Supplies Corp., 719 F.2d 1092 (11th Cir. 1983) (rejecting the plaintiff’s tortious interference claim because “the competition privilege barred the plaintiff from turning the defendant’s broken promise not to compete into a tortious interference claim.”). This privilege usually applies where two or more companies compete over a contract or business. Jay v. Mobley, 783 So. 2d 297 (Fla. 4th DCA 2001). The defendant asserting the privilege must prove the relationship concerns a matter involving competition between himself and plaintiff, the defendant did not employ wrongful means, the defendant’s actions do not create an unlawful restraint of trade, and defendant’s actions were intended to advance his interest in competition with the plaintiff. Weisman v. S. Wine & Spirits of Am., Inc., 297 So. 3d 646 (Fla. 4th DCA 2020). By establishing these elements, the defendant is demonstrating that his or her actions constitute lawful competition.

Peter Mavrick is a Miami business litigation lawyer, and represents clients in Fort Lauderdale, 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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