Tortious Interference with Business Relationship and Two Defense Privileges
A cause of action for tortious interference with an advantageous business relationship requires proof of four elements:
(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 the breach of the relationship.
Weisman v. Southern Wine & Spirits of America, Inc., 45 Fla. L. Weekly D1140a (Fla. 4th DCA 2020).
This tortious interference claim “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.” Id. quoting Jay v. Mobley, 783 So.2d 297, 299 (Fla. 4thDCA 2001).
A defendant can raise two defense privilege to a tortious interference claim with an advantageous business relationship claim.
Competition Privilege
The first defense privilege has been referred to as the competition privilege. Weisman, supra. The competition privilege comes into play when companies are competing over business or a contract. A defendant raising the competition privilege in defense of a tortious interference with an advantageous business relationship claim must prove four elements:
(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.
Weisman, supra, quoting RESTATEMETN (SECOND) OF TORTS s. 768 (1979).
Protection Privilege
The second defense privilege has been referred to as the protection privilege. Weisman, supra. The protection privilege comes into play when the defendant interferes with a business relationship to protect its own contractual and financial interest. However, the defendant needs to prove it did NOT use improper means when it interfered. “‘[I]mproper means’ has been interpreted as ‘doing no more than insist[ing] upon existent legal rights in a permissive way.’” Weisman, supra, quoting Horizons Rehab, Inc. v. Health Care & Ret. Corp., 810 So.2d 958, 964 (Fla. 5th DCA 2002). Once the defendant shows they did not use improper means, the burden of proof shifts to the plaintiff to show the defendant actually used improper means. Weisman, supra.
Case Example
In Weisman, which had a crazy fact pattern, the plaintiff served as the Director of Business Relations for a wine and spirits distributor. She was offered a new position within the company and declined. She was also arrested for a federal crime. The company terminated her when she decided not to move forward with the new position and their concern with her federal charges. She subsequently started working for a marketing company in the liquor industry where the marketing company was paid to perform services for retailers. The former employer learned that the plaintiff was violating certain laws in her capacity with her new company and was requiring marketing funds to have supplier’s products included in a retailer’s beverage program only for her to remove the former employer’s wine and spirits from the retailer’s premises. As a result, the former employer sent a memorandum to its retailer clients stating:
[The former employer], including all of its divisions, has made a decision not to do business directly with [Weisman] or any marketing or management company in which she is an employee or consultant. We have always had a great relationship with your business and [the former employer] wants to continue to work with your [retailer business] to provide [the] best in class alcoholic beverage solutions. All of the divisions of [the former employer] desire to continue that great relationship established over the years if you and your managers will deal directly with us. One of our consultants will be reaching out to you shortly to discuss next steps. If you are designating [Weisman] as your representative, we regret to inform you that we will not work with her. If you have any questions, please call one of us listed above to discuss.
This memorandum prompted the plaintiff to sue her former employer for tortious interference with advantageous business relationships. She lost, largely based on the protection privilege. The former employer did not use improper means to protect its own financial and contractual interests by advising retailers that it will not do business with the plaintiff. The former employer’s memorandum also did not mention or accuse the plaintiff of any illegalities or identify her prior crimes.
Please contact David Adelstein at [email protected] or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.
