Actions For Interference With Contract Rights

Actions For Interference With Contract Rights

By: Stanley Rothenberg

Stanley Rothenberg, a partner in the firm of Heit & Rothenberg of New York City, has specialized in

copyright and entertainment law since graduation from Harvard Law School in 1953. He earned a

doctorate from the University of Utrecht (Netherlands) while a Fulbright Scholar in copyright law. He has

written three books, including Legal Protection of Literature, Art & Music, and numerous articles on his

specialty for legal and trade publications, including "Bulletin of the Copyright Society of the U.S.A.",

"Encyclopedia Americana", "World Encyclopedia Unfair Competition", "Performing Arts Review", and

"Variety". Mr. Rothenberg is a vice-president and member of the executive committee of the Copyright

Society of the U.S.A., has served as an arbitrator for the American Arbitration Association and as

chairman of various copyright committees of the American Bar Association, and has lectured extensively

before the Practicing Law Institute and other professional groups.



I. Introduction



§ 1. In general; scope of article

In addition to the remedy of breach of contract, the law recognizes an action in tort for

wrongful interference with contractual rights and relations.(FN1) The purpose of this

article, therefore, is to consider the preparation and trial of such an action. The article

discusses both the techniques that the plaintiff can use to institute and prosecute the

action and also the techniques that the defendant can employ to defend the action.



Recognition that many economic relations are entitled to protection against

unreasonable interference is, on the whole, a comparatively recent development. Most

of the law has arisen since the beginning of the twentieth century as a consequence of

the methods and conditions of modern industry and trade.(FN2) However, the particular

aspect of the doctrine that relates to interference with contract rights dates entirely from

the famous nineteenth-century English case of Lumley v. Gye, (FN3) which involved

interference with an exclusive talent agreement with a famous opera singer. The

remedy for the tort of contract interference now extends, it should be noted, to situations

where an actual contract relationship is lacking, as where the defendant interferes with

an expectancy or an advantageous relationship.



The general theory that underlies the tort of wrongful interference with a contract is that

the law will attempt to draw a line beyond which no one may go in intentionally

interfering with the business affairs of others. This theory, of course, also underlies the

broader tort of interference with economic relations. However, in addition to this general

theory, another underlying theory that is more restrictive in nature also applies to the tort

of wrongful interference with a contract. Under this latter theory, interference with a

contract is deemed to be wrongful because it violates the rights of the contracting

parties to fulfill the contract and to have it fulfilled, to reap the profits resulting from the

contract, and to compel performance by the other party. In other words, the contract not

only confers certain rights on the parties thereto and binds them to the agreement; in

addition, it imposes on all other persons the duty of respecting the agreement as a valid

contractual obligation with which there may not be interference.(FN4)



By express statutory provision in a number of states, it is a criminal offense for one

person to interfere with the contractual relations that exist between an employer and an

employee. These statutory provisions, however, do not deprive the employer of his

common-law tort remedy for damages. Instead, they simply provide him with an

additional remedy.(FN5)



Editor's Comment:



See also Prospective Purchaser's Recovery of Damages for Tortious Interference with

Real Estate Contract, 97 Am. Jur. Trials 107.



See also Tortious Interference with Real Estate Broker's Contractual Relationship with

Seller, 90 Am. Jur. Proof of Facts 3d 207; Tortious Interference With Real Estate Lease,

67 Am. Jur. Proof of Facts 3d 147; Tortious Interference With Contractual Relationship

Involving Sale of Real Estate, 64 Am. Jur. Proof of Facts 3d 273.



Cases:



 Associates in a law firm who, when they left and formed a partnership of their

own, wrote to clients with whom they had been working for the firm, informed

them of the new partnership, and told them that the clients were free to terminate

their old relationship with the firm and seek representation by the new

partnership were held not to be guilty of improper interference with contract nor

with unethical solicitation of clients. The court said that since the clients were

already engaged in litigation there was no solicitation and that the former

associates acted within their rights under Bates v. State Bar, U.S. Supreme Court

case which authorized legal advertising. Adler, Barish, Daniels, Levin & Creskoff

v. Epstein (1977) 252 Pa Super 553, 382 A2d 1226.



 Professional football league did not tortiously interfere with contract between

public commission and team, calling for relocation of team, when it charged team

$29 million relocation fee; action did not result in termination of contract, as

required under Missouri law, as commission declined to utilize contractual

escape clause if relocation fee exceeded the $7.5 million it had agreed to pay on

team's behalf and agreed to pay $20 million of fee, and Missouri did not

recognize tortious interference when third party action merely made contract

performance more burdensome. St. Louis Convention & Visitors Com'n v.

National Football League, 154 F.3d 851 (8th Cir. 1998).



 Only causes of action recognizable in tort as exceptions to workers'

compensation exclusive-remedy provision are fraud and tort of outrageous

conduct; interference with contract claim is barred by exclusivity provision. Crean

v. Michelin Tire Corp. (1995, MD Ala) 889 F Supp 460.



 Statutory immunity: Health Care Quality Improvement Act (HCQIA) immunity

did not apply to physician's claims against hospital's executive committee for

tortious interference with contract and business relationships, loss of certain

business opportunities, and defamation to extent that such claims did not "relate

to" professional review actions. 42 U.S.C.A. § 1983; Health Care Quality

Improvement Act of 1986, § 412(a), 42 U.S.C.A. § 11112(a). Reyes v. Wilson

Memorial Hosp., 102 F. Supp. 2d 798 (S.D. Ohio 1998); West's Key Number

Digest, Torts 10(3).



 Cause of action for intentional interference with a "business relation" as well as a

"contractual relation" allows a plaintiff a remedy in the situation where a

defendant has intentionally interfered with a prospective contract as well when he

has interfered with an existing contract. Restatement (Second) of Torts, § 766B.

Ex parte Alabama Dept. of Transp., 764 So. 2d 1263 (Ala. 2000); West's Key

Number Digest, Torts 12.



 The torts of intentional interference with contractual relations, intentional

interference with lawful business, and intentional interference with prospective

business advantage are closely related. The tort of interference with contractual

relations is merely a species of the broader tort of interference with prospective

business advantage, and the tort of interference with business advantage is

merely interference with ongoing and existing, rather than prospective, business

advantage. The general wrong involved in each tort consists of intentional and

improper methods of diverting or taking away ongoing or prospective business or

contractual rights from another, which methods are not within the privilege of fair

competition. Rubin v. Green (1992, 4th Dist) 9 Cal App 4th 986.



 Conspiracy to breach: Real estate brokers could not recover damages from

purchasers for both tortious interference with a contract and civil conspiracy to

breach the contract; the two claims encompassed the same damages, and only

one recovery was permitted. Osheroff v. Rauch Weaver Millsaps & Co., 882 So.

2d 503 (Fla. Dist. Ct. App. 4th Dist. 2004), review denied, 898 So. 2d 938 (Fla.

2005); West's Key Number Digest, Damages 15.



 Evidence that neighborhood-association committee member recruited individuals

to run for association's board positions for express purpose of terminating

executive director's employment, that committee member further recruited

ineligible voters to attend election and paid them to vote for member's slate of

directors, that committee member argued at special meeting in favor of

termination of director's employment, and that directors recruited by committee

member voted to terminate director's employment presented prima facie case

that committee member's conduct was procuring cause of termination of

director's employment, as would support director's claim of tortious interference

with contract against committee member. Metge v. Central Neighborhood

Improvement Ass'n, 649 N.W.2d 488 (Minn. Ct. App. 2002); West's Key Number

Digest, Torts 12.



 The acts of boycott organizers in writing letters to entertainers, urging them not to

perform in city after city police officer's shooting of African-American person,

involved political expression aimed at punishing city or persuading city to take

action, so that such acts were protected under the Free Speech Clauses of the

federal and State Constitutions, and thus, non-profit promoter of arts

performances could not bring claims against organizers for tortious interference

with contract or civil conspiracy. U.S.C.A. Const.Amend. 1; Const. Art. 1, § 11;

Restatement (Second) of Torts § 766. Cincinnati Arts Assn. v. Jones, 120 Ohio

Misc. 2d 26, 2002 —Ohio— 5428, 777 N.E.2d 346 (C.P. 2002); West's Key

Number Digest, Conspiracy 7.5(2).



 In action for interference with prospective contractual relationship between

plaintiff and prospective purchaser of real estate, defendants' actions of informing

prospective purchaser that plaintiff's property flooded every spring and that septic

system for house had not been approved caused prospective purchasers not to

enter into contract for purchase of plaintiff's property, and instituted tort of

interference with prospective contractual relationship for which defendants could

be liable. Martin v. Wing (1983, Wyo) 667 P2d 1159.



§ 2. Illustrative fact situation assumed in article

In a typical action for damages for wrongful interference with a contract, the fact

situation involved is as follows: A talented individual, such as a singer, signs an

exclusive talent agreement with another individual or company. This agreement

provides that the other party will market the products of the artist's talent in a particular

medium and that the artist will not use his talent in that medium for the benefit of any

other person during the duration of the contract. Thereafter, within the period

contemplated by the contract, a third person uses the artist's talent in the medium in

question, thus giving rise to the litigation.



To illustrate the institution, prosecution, and defense of a typical action for wrongful

interference with a contract, this article assumes the following hypothetical fact situation:

A well-known singer signs a recording agreement with the plaintiff recording company.

Under this contract, the singer is to record exclusively for the plaintiff for a fixed period

of time. However, within this period the singer makes, pursuant to another contract with

a motion picture company, a musical film. After the making of the film, the motion

picture company reproduces from the film's sound track, within the period of time

contemplated by the contract between the plaintiff and the singer, certain songs that the

singer sang in the film and has these songs distributed by an independent recording

company. On becoming aware of these facts, the plaintiff recording company brings suit

for wrongful interference by third persons with the rights of the plaintiff under its contract

with the singer.



In the hypothetical fact situation described above, the plaintiff recording company would

probably join as codefendants in the action the motion picture company and its

president, the distributor of the musical film made by the motion picture company, the

manufacturer of the records reproducing the songs sung by the singer in the motion

picture, and the distributor of these records.(FN6)



In connection with the above illustrative fact situation, it should be noted that an action

for intentional interference with a contract for a recording artist's exclusive services may

also involve, besides the matter of contract interference, certain elements of an action

for unfair competition(FN7) and, on occasion, elements of an action for copyright

infringement.(FN8)



Cases:



 Doctors vs MCO: Physicians and state medical association, on behalf of

participating physicians in health insurer's physician network, sufficiently alleged

that health insurer intended to interfere with their prospective economic

advantage from their relation ship with patients, thus supporting cause of action

against health insurer for tortious interference with prospective business

advantage, where physicians asserted that insurer provided unreasonable

reimbursement rates often too low to even cover overhead expenses,

automatically downcoded physician claims to reduce reimbursements, and

improperly applied black box edits, resulting in denial of claims when certain

codes or combinations of codes were submitted for reimbursement. Hawaii

Medical Ass'n v. Hawaii Medical Service Ass'n, Inc., 113 Haw. 77, 148 P.3d 1179

(2006); West's Key Number Digest, Torts 245.



§ 2.5. Noerr–Pennington doctrine; Privileged interference



 Noerr-Pennington doctrine, barring imposition of liability when persons seek to

induce executive, legislative or judicial action, precluded § 1983 action, and claim

of tortious interference with contracts and prospective business relations under

Pennsylvania law, against neighbors of bakery who made non-sham complaints

to authorities about alleged unlawful activities at facility. 42 U.S.C.A. § 1983.

Pellegrino Food Products Co., Inc. v. City of Warren, 136 F. Supp. 2d 391 (W.D.

Pa. 2000); West's Key Number Digest, Constitutional Law 91.



 The privilege afforded counsel in making defamatory statements during the

course of judicial proceedings does not, as a matter of law, preclude an action

against an adverse attorney for the intentional tort of interference with contractual

relations when the complained-of conduct is connected to the judicial proceeding.

Safeway Ins. Co., Inc. v. Guerrero, 207 Ariz. 82, 83 P.3d 560 (Ct. App. Div. 1

2004), review granted, (Sept. 21, 2004); West's Key Number Digest, Mental

Health 16.



 Automobile dealership's acts of settling directly with plaintiff in lemon law suit,

and tendering attorney fees to plaintiff's attorneys calculated according to one of

three alternative methods in fee agreement between attorneys and plaintiff, were

not protected by litigation privilege, and thus attorneys could assert claim for

tortious interference with contractual relationship against dealership; dealership

could not use its legitimate interest in settling the case to restrict attorney fees to

the lowest among the alternative measures in the fee agreement. Ingalsbe v.

Stewart Agency, Inc., 869 So. 2d 30 (Fla. Dist. Ct. App. 4th Dist. 2004), review

granted, 880 So. 2d 1213 (Fla. 2004); West's Key Number Digest, Mental Health

16.



 The prosecution of unfounded litigation constitutes actionable improper

means for purposes of tortious interference if: (1) the plaintiff in the antecedent

proceedings lacked probable cause to prosecute those proceedings, (2) the

primary purpose of those proceedings was something other than to secure an

adjudication of the claims asserted there, and (3) the antecedent proceedings

were terminated in favor of the party now asserting the tortious interference

claim. Mantia v. Hanson, 190 Or. App. 412, 79 P.3d 404 (2003); West's Key

Number Digest, Mental Health 10(1).



 Under the Noerr-Pennington doctrine, state legislator was immune from liability

on claim of tortious interference with prospective contractual relations for

lobbying executive branch to stop proposed sale of state property to prospective

purchaser, regardless of his motive for doing so, given that such lobbying was an

exercise of his First Amendment rights in petitioning the government. U.S.C.A.

Const.Amend. 1. Firetree, Ltd. v. Fairchild, 920 A.2d 913 (Pa. Commw. Ct.

2007); West's Key Number Digest, Torts 242.



 Noerr–Pennington immunity doctrine, which doctrine protects First

Amendment right to petition government for redress of grievances by providing

immunity for actions constituting petitions to government, protected opponents of

developer's proposed commercial development from claims for intentional

interference with economic relations, relating to their efforts to derail developer's

zoning change application to city council; while developer had contract to

purchase land which contained condition precedent regarding city's approval of

developer's application for zoning change by specified date, opponents' petitions

to city council were genuinely designed to achieve their desired outcome of

denial of developer's zoning application, even if opponents misrepresented to city

council their ability to raise funds to purchase the land themselves. U.S.C.A.

Const.Amend. 1. Anderson Development Co. v. Tobias, 2005 UT 36, 116 P.3d

323 (Utah 2005); West's Key Number Digest, Constitutional Law 91.



 § 2.6. SLAPP laws applicability to interference claims. Intentional interference

with prospective economic advantage claim was based, in part, on protected

activity that was not merely incidental to activity that was unprotected, under the

anti-SLAPP (strategic lawsuit against public participation), such that the

intentional interference claim was subject to being stricken, in the absence of a

showing of probability of success on the merits; allegations of protected contact

with officials in contemplation of litigation or prosecution and filing of lis pendens

and notice of rescission were bulk of the allegations underlying the claim, and

trespass was the only unprotected activity. West's Ann.Cal.C.C.P. § 425.16.

Salma v. Capon, 161 Cal. App. 4th 1275, 74 Cal. Rptr. 3d 873 (1st Dist. 2008);

West's Key Number Digest, Pleading 358.

 Property owner's lawsuit against city challenging rezoning rulings neighboring

property owner and developer obtained in connection with developer's planned

purchase of land adjacent to owner's property fell within purview of the anti-

SLAPP (Strategic Lawsuits Against Public Participation) statute, and, thus,

neighboring property owner in its subsequent lawsuit against owner asserting

tortious interference with business and contractual relations and other claims,

was required to verify its claims; property owner was exercising his right to

petition the government for redress of a grievance for a rezoning decision,

neighboring property owner's original complaint revealed that the pinnacle of

owner's tortious behavior about which neighboring property owner complained

was owner's filing of lawsuit against city, and it was the filing of this suit that

neighboring property owner claimed resulted in interference with its contractual

and business relationship with developer. West's Ga.Code Ann. § 9-11-11.1(b).

Hagemann v. Berkman Wynhaven Assoc., 290 Ga. App. 677, 660 S.E.2d 449

(2008); West's Key Number Digest, Pleading 358.



 SLAPP law verification requirement: Group of orthopedic surgeons whose

claim against hospital association for tortious interference with business relations

was stricken with prejudice for failure to comply with verification requirement of

Anti-Strategic Lawsuits Against Public Participation (anti-SLAPP) statute, and

who brought legal malpractice action against attorney who represented them in

the action against association, timely and sufficiently alleged that they were

harmed by attorney's failure to advise them of the risks of not verifying complaint;

surgeons submitted expert affidavit opining that attorney committed malpractice

by failing to advise surgeons, and pretrial order could be construed to allege

same claim. West's Ga.Code Ann. § 9-11-11.1(b). Chatham Orthopaedic Surgery

Center, LLC v. White, 283 Ga. App. 10, 640 S.E.2d 633 (2006), cert. denied,

(May 14, 2007); West's Key Number Digest, Attorney and Client 129(2).



II. Case Investigation



§ 3. In general; examination of the contract

In a case involving wrongful interference with contract rights, attorneys for both the

plaintiff and the defendant should, at the outset, carefully examine the contract that has

allegedly been interfered with. Careful interpretation of the contract will frequently

determine which of several possible defendants is liable.(FN9) In an exclusive song

recording contract case, for example, difficulties may arise in determining the particular

medium in which the artist agreed to render his exclusive services. For instance, a

phrase such as "for the purpose of making phonograph records or any reproductions of

any kind of performances by any method now or hereafter known" may require

interpretation. Indeed, the preparation and trial of an action for interference with contract

rights will ordinarily involve the application of both contract and tort principles of law.



In an exclusive song recording contract case, the defense attorney should always

examine any earlier contract that the singer, whose contract with the plaintiff recording

company has allegedly been interfered with, may have made with another recording

company. Such an examination may reveal that the plaintiff is estopped to assert its

rights under its contract with the artist because of knowledge that the artist had

previously contracted his services to another company. If the plaintiff's contract with the

artist also includes motion picture rights, knowledge by the plaintiff that such rights were

subsequently being contracted for by another company may require the plaintiff to have

notified such other company of its exclusive rights to the artist's motion picture services,

on pain of being estopped to assert such rights. Furthermore, if the plaintiff is estopped

to assert its exclusive rights to the artist's motion picture services, the defense attorney

may also find that the plaintiff is estopped to assert its exclusive rights to the artist's

song recording services. In addition, in some situations the plaintiff may be under an

obligation to notify the motion picture producer of its exclusive rights to the production

and distribution of song recordings by the artist.



For his part, the plaintiff's counsel should examine any contract entered into between

the artist and the defendant or defendants. The contract between the artist and a

defendant motion picture company, for example, may specifically exclude any right to

exploit the singing talents of the artist, except in connection with his motion picture

performance. On the other hand, the contract may not contain such an exclusionary

clause but merely state which rights are granted. The nature of the motion picture

company's contract with the artist may serve to impute to the company's officials

knowledge of the limited rights that the company has to the artist's talents. Knowledge

by the motion picture company that it did not acquire certain rights may not, however,

be sufficient to attribute to it knowledge that the plaintiff recording company possesses

such rights. In any contract interference action, the knowledge of the defendant is the

major issue in establishing the plaintiff's claim of tortious interference with his contract

rights.



Cases:



 Affidavits asserting that superintendent and his successor relieved teacher of

duties, prohibited him from teaching math, reassigned him to another school,

placed him on probation, gave him unsatisfactory evaluation, and froze salary in

retaliation for testimony given concerning grading policies for athletes, and that

superintendent was responsible for these actions were not sufficient to raise fact

issue on whether principal who had ordered teacher to give athlete passing

grade, engaged in tortious interference of contract or acted in bad faith, either in

official or individual capacity. Bates v. Dallas Independent School Dist., 952

S.W.2d 543, 121 Ed. Law Rep. 414 (Tex. App. Dallas 1997), reh'g overruled,

(Mar. 31, 1997) and writ denied, (Sept. 25, 1997) and reh'g of writ of error

overruled, (Oct. 23, 1997).



 In action alleging, inter alia, tortious interference with contract, although

anesthesiologist had contract with hospital under bylaws, neither bylaws nor staff

privileges conveyed any affirmative right to obtain work within hospital, nor did

they limit hospital's right to enter into exclusive contract with another

anesthesiologist for conducting hospital business, and therefore no damage

could result from interference with contract created by hospital bylaws. Gonzalez

v. San Jacinto Methodist Hosp. (1995, Tex App El Paso) 905 SW2d 416, 1995-2

CCH Trade Cases ¶71147.



§ 4. Client interview—plaintiff

In an action for tortious interference with an exclusive talent contract with an artist, the

plaintiff's attorney should ascertain, in his initial interview with his client, all pertinent

information on the matters listed in the following checklist:



 The name of the artist.

 The type of talent involved.

 The uniqueness of the talent.

 The fame of the artist.

 The terms of the plaintiff's contract with the artist.

 Whether the artist was told he could not perform for anyone else.

 Whether the plaintiff actually knew that the artist intended to perform for

someone else.

 The date the plaintiff first gained knowledge of the alleged interference with his

exclusive talent contract.

 The manner in which plaintiff first learned of this interference.

 Any preliminary attempts by the plaintiff to prevent interference.

 Whether the plaintiff informed the defendant of the plaintiff's existing exclusive

talent agreement after learning of the interference.

 Whether the defendant, or defendants, or any of them, had learned, otherwise

than through the plaintiff, of the plaintiff's exclusive contract with the artist.



The conventional aspects of the client interview, of course, are conducted in

accordance with the manner of interviewing clients generally.(FN10)



§ 5. Client interview—Defendant

The attorney or attorneys for the defense, in an action for interference with an exclusive

talent contract, may have several clients to interview. In the illustrative hypothetical fact

situation assumed in this article, which involves alleged interference with the plaintiff

recording company's exclusive contract with a well-known singer,(FN11) these clients

would include the president and other corporate officials of the motion picture company,

the distributor of the film in which the singer appeared, the recording company that

reproduced the songs sung by the singer in the film, and the distributor of these

recordings.(FN12)



The interview with the motion picture company's president should produce all facts

relating to possible knowledge of the performer's contract with the plaintiff. The interview

regarding this issue might proceed substantially as follows:(FN13)



Q. Why did you sign (the artist) for the picture?



A. (Another singer) was originally scheduled for the picture. However, because of

the delay in shooting due to the industry-wide strike, she was unavailable when

we resumed, and we had to get an acceptable substitute. (The artist) was

appearing at a local nightclub and was willing to take the job, and we were

delighted to get her.



Q. Did you know that your new performer was also a recording star?



A. Of course. That was the reason we wanted her.



Q. Did you know which record company she worked for?



A. I knew that she had connections with several. I never thought about a particular

company at all. At the time I signed her, I was only thinking of my picture, which

had been at a standstill so many months.



Q. When did you first consider making phonograph records from the film's sound

track?



A. After the picture was finished and had been released. (Composer), who wrote the

songs sung by (the artist) in the picture, informed me of the prospects of getting a

record company to do a sound-track album.



Q. Did he mention the possibility that (the artist) might already be under an

exclusive recording contract with another recording company?



A. No.



Q. Is the composer knowledgeable in the business aspects of music records

production?



A. Yes, he is very knowledgeable. He has had several big hits and also owns a

music publishing company. His lawyer is also very knowledgeable about the

music recording industry.



Q. Did you meet his lawyer?



A. Yes, I met him when I entered into an agreement with the (composer's)

publishing company to manage the exploitation of the rights to the music from the

picture.



Q. Did he know you were going to license the sound-track phonograph recordings,

including recordings of the songs of (the artist)?



A. Of course. He had to license the record manufacturer's use of the copyrighted

compositions. We were licensing only the performers' end of things.

Q. Did the lawyer ever suggest that (the artist) might have an exclusive agreement

with some other record manufacturer?



A. No.



Q. Did you meet the record manufacturer whom you licensed?



A. I met the general manager of the company.



Q. Did you meet the lawyer of the record manufacturer?



A. No.



Q. What was the purpose of your meeting with the manufacturer's general

manager?



A. To agree upon the terms of the license.



Q. At any time during this meeting, did he mention the possibility that (the artist)

might have an exclusive agreement with another recording company?



A. No.



Q. Was he knowledgeable about the recording business?



A. I assume so.



Q. When did you get your first knowledge of an exclusive recording agreement

between the plaintiff and (the artist)?



A. When a letter arrived from the plaintiff's attorney, after partial distribution of the

sound-track recordings.



After their interview with the president of the defendant motion picture company, the

defense attorneys should use the results of the interview as the basis for replying to any

correspondence from the attorney for the plaintiff recording company.(FN14)



§ 6. Determining existence of cause of action

Ehe plaintiff's counsel must make a careful inquiry to determine whether his client has a

valid cause of action for the alleged tortious interference with the client's contract.

Generally, one may not interfere with the contract rights of another unless the

interference is justified or is an exercise of an absolute right. Interference that is not

justified or does not constitute an exercise of an absolute right is generally actionable on

the ground that it is malicious.(FN15) However, the dominating consideration of the

courts today, instead of a determination of the presence or absence of some kind of

legal malice, seems to be balancing the conflicting economic interests of the parties, so

as to prevent unwarranted and actual injury. For example, one who knowingly induces

the employee of another to quit his employment, to the employer's actual injury, will be

held liable in damages to the employer.(FN16) In brief, to sustain an action for damages

for unlawful interference with a contractual right, the plaintiff must establish the matters

listed in the following checklist:



 The existence of a valid contract to which the plaintiff is a party.

 The plaintiff's rights under the contract.

 The defendant's knowledge of those existing rights.

 The defendant's intentional interference with those rights.

 Lack of justification for the defendant's acts.

 Damage to the plaintiff resulting from the interference.



Cases:



 The elements of a cause of action for intentional interference with contractual

relations are: (1) a valid contract between the plaintiff and a third party; (2) the

defendant's knowledge of the contract; (3) the defendant's intentional acts

designed to induce a breach or disruption of the contractual relationship; (4)

actual breach or disruption of the contractual relationship; and (5) resulting

damage. The tort may be based on an employment relationship even if it is

regarded as a contract at will, since the contractual relationship is at the will of

the parties, not at the will of outsiders. Savage v. Pacific Gas & Elec. Co. (1993,

1st Dist) 21 Cal App 4th 434, 26 Cal Rptr 2d 305, 93 CDOS 9753, 93 Daily

Journal DAR 16637.



 The tort of intentional or negligent interference with prospective economic

advantage imposes liability for improper methods of disrupting or diverting the

business relationship of another which fall outside the boundaries of fair

competition. It is premised upon the principle that everyone has the right to

establish and conduct a lawful business and is entitled to the protection of

organized society, through its courts, whenever that right is unlawfully invaded.

The elements of the tort include:



(1) the existence of a prospective business relationship containing the

probability of future economic rewards for the plaintiff;



(2) knowledge by the defendant of the existence of the relationship;



(3) intentional acts by the defendant designed to disrupt the relationship;



(4) actual causation; and,



(5) damages to the plaintiff proximately caused by the defendant's

conduct. The general wrong inherent in this tort is the unlawful

interference with a business opportunity through methods which are not

within the privilege of fair competition Settimo Associates v. Environ

Systems, Inc. (1993) 14 Cal App 4th 842, 17 Cal Rptr 2d 757, 93 CDOS

2379, 93 Daily Journal DAR 4009.



 Unsuccessful bidder for public contract could maintain action for damages

against successful bidder for fraudulent interference with advantageous business

relations (and violation of Connecticut Unfair Trade Practices Act) where it was

alleged that defendant tortiously interfered with plaintiff's expectancy of contract

bid for rehabilitation of airport runway by submitting fraudulent bid. Doctrine

providing that unsuccessful bidder has no standing to challenge, by way of

injunction or mandamus, award of public contract, except where bidding official

has been guilty of fraud or corruption, did not preclude action. Della Constr., Inc.

v. Lane Constr. Corp. (1991) 42 Conn Supp 202, 612 A2d 147.



 Evidence supported finding that daughters tortiously interfered with father's

contract to give son father's half interest in business when he was no longer able

to continue; daughters were not parties to contract, daughters misled father into

believing that son had cheated him out of some property, and son had to file

lawsuit, with its concomitant expenses, to effectuate terms of contract. Waugh v.

Waugh, 265 Ga. App. 799, 595 S.E.2d 647 (2004); West's Key Number Digest,

Limitation of Actions 12.



 Action by founder of social club for persons of size for tortious interference with

contract against newspaper alleging newspaper improperly attributed caption

from cover of adult magazine, "5,000 Pounds of Sex-Starved Fatties" to social

club on newspaper's Internet website was not barred under one-year statute of

limitations for "injuries to the reputation." West's Ga.Code Ann. § 9-3-33.

McCandliss v. Cox Enterprises, Inc., 265 Ga. App. 377, 593 S.E.2d 856 (2004),

cert. denied, (May 24, 2004); West's Key Number Digest, Limitation of Actions

55(1).



 Cause of action for tortious inducement to breach contract occurs when actual

damages as result of tortious conduct are sustained, not necessarily when

contract is breached, since damage is essential element of the tort; moreover,

nominal damages associated with underlying breach of contract will not stand in

stead of actual damages. Kronos, Inc. v. AVX Corp. (1993) 81 NY2d 90, 595

NYS2d 931, 612 NE2d 289.



 Plaintiff adequately stated claim for tortious interference with contractual

relations, in light of allegations and evidence that plaintiff had waste-removal

contracts with tenants of shopping center, owner of shopping center and another

waste-removal business were aware of those contracts when they entered into

agreement resulting in tenants terminating their agreements with plaintiff, and in

agreement other business agreed to indemnify and hold harmless owner and

tenants from legal actions initiated by displaced hauling companies and agreed

to provide legal counsel to owner and tenants against such actions. Bayside

Carting, Inc. v. Chic Cleaners, 660 N.Y.S.2d 23 (App. Div. 2d Dep't 1997).



 Defendant fashion model was entitled to summary judgment dismissing modeling

agency's action for tortious interference with contract between agency and one of

its models who changed agencies with defendant's encouragement, since there

was no question of fact as to defendant's intentionally inducing breach under

circumstances in which (1) while models were on assignment together,

defendant-in response to her friend's complaints about working conditions—

encouraged latter to change agencies, and (2) when the two worked at fashion

show, defendant called her agent, said that her friend wanted to make

appointment, and handed phone to friend; at most, defendant's actions could be

construed as intent to accommodate her friend, who had already expressed

dissatisfaction with plaintiff agency. Click Model Management, Inc. v. Williams

(1990, 1st Dept) 167 AD2d 279, 561 NYS2d 781, app den 77 NY2d 805, 568

NYS2d 913, 571 NE2d 83.



 Misrepresentations in competing bid: Genuine issues of material fact as to

whether opponents of developer's proposed commercial development

misrepresented, to landowner with whom developer had land purchase

agreement, their ability to purchase the property themselves or to secure a buyer

willing and able to do so, and as to whether such alleged misrepresentations

inflated developer's ultimate purchase price for the land in second land purchase

agreement, precluded summary judgment for opponents, in developer's action

against opponents for intentional interference with existing contractual relations.

Anderson Development Co. v. Tobias, 2005 UT 36, 116 P.3d 323 (Utah 2005);

West's Key Number Digest, Judgment 181(33).



§ 7. Particular requirements—That plaintiff have a valid contract with another

person

As a general rule, there must be an existing, valid contract before one can be liable for

intentional interference with a contractual relationship.(FN17) Clearly, the greater the

difficulty encountered by the plaintiff in establishing particular contractual rights with

which there allegedly has been interference, the more difficult it will be to establish that

the defendant had actual knowledge of these rights. Therefore, in the illustrative

hypothetical litigation situation being developed in this article,(FN18) all evidence that a

valid contract existed between the artist and the plaintiff recording company must be

investigated and evaluated.



Interference with a contract that is terminable at will, such as an employment contract, is

actionable since such a contract, until it is terminated, is of value to the plaintiff and

presumably will continue to be in effect.(FN19) Moreover, an agreement may not even

have to be enforceable against the employee or performer in order to be the basis of a

tort action for contract interference by a third party.(FN20) In such a case, the law

assumes that even an unenforceable promise will be carried out if the third person does

not interfere. However, there is no cause of action if the plaintiff did not possess the

contractual rights with which there has been claimed interference. In fact, to defeat the

plaintiff's claim, it may be necessary for defense counsel to show that the invaded right

was the property of a third party, even though this may expose the defendant to the

possibility of a lawsuit by such party.



To be the basis of an action for tortious interference, the contract interfered with must

not be illegal as in restraint of trade or otherwise opposed to public policy. For example,

recovery has been denied for interference with contracts that tended to stifle business

competition.(FN1)



Cases:



 Structured settlement requiring court approval: Fact that factoring company's

contract with beneficiary of settlement and annuity, for company to receive some

payments due beneficiary in exchange for discounted lump sum payment, was

not effective until approved by court, under Texas Structured Settlement

Protection Act, did not mean the proposed contract was not subject to tortious

interference. V.T.C.A., Civil Practice & Remedies Code § 141.006(a). Settlement

Capital Corp. v. BHG Structured Settlements, Inc., 319 F. Supp. 2d 729 (N.D.

Tex. 2004); West's Key Number Digest, Limitation of Actions 12.



 In action for tortious interference with business expectancy by person who made

bid on parcel of land at tax sale which was accepted, subject to contingency that

estate owning land could redeem parcel by paying delinquent taxes within 30

days, against president of title company hired by bidder to research title to parcel,

who informed executor of estate of estate's right to redeem parcel, redeemed

parcel on behalf of estate and then began negotiations with estate to purchase

property, trial court properly granted summary judgment in favor of title company

and its president, where bidder's business expectancy—to purchase property

unless owner made timely redemption—was fulfilled. Donathan v. McDill (1990)

304 Ark 242, 800 SW2d 433.



 In action by temporary nursing service against insurance agent who had

allegedly wrongfully advised hospital to whom service provided nurses that

malpractice insurance was cancelled, trial court erroneously granted insurer's

directed verdict, where jury could have concluded from at least some of evidence

that insurance agent tortiously interfered with advantageous business

relationship between hospital and service causing lost profits, despite fact that

hospital was under no obligation to hire any nurses from agency and there was

no enforceable contract. PRN of Denver, Inc. v. Arthur J. Gallagher & Co. (1988,

Fla App D3) 531 So 2d 1001, 13 FLW 2201.



 In declaratory judgment action by hospital against radiologist and his professional

corporation to establish hospital's rights to terminate its contract with corporation

and withdraw radiologist's staff privileges, radiologist and corporation failed to

establish counterclaims for tortious interference with existing and prospective

contractual relations. Hospital's acts, which allegedly caused radiologists in

corporation's employ to leave their positions and substantially impaired

corporation's ability to recruit new physicians, including numerous incidents

arising out of disagreements between hospital and corporation concerning

purchase and management of equipment, imposition of allegedly unjustifiable

administrative and procedural requirements on corporation's physicians, and

allocation of professional responsibilities between various medical specialists

staffing hospital, as well as testimony concerning difficulties encountered in

recruiting radiologists to join corporation as result of hospital's allegedly

unreasonable and disruptive conduct, failed to establish essential element of

inducement of adverse actions by third parties. Each alleged wrongful incident

arose out of performance of contractual relationship between hospital and

corporation, not as result of any inducement directed toward corporation's

employee physicians or recruits. St. Mary's Hosp., Inc. v. Radiology Professional

Corp. (1992) 205 Ga App 121, 421 SE2d 731, 92 Fulton County D R 1448.



 Law firm was not liable to lender for intentional interference with contract since

firm was representing buyer when he took action of which lender complained and

anything law firm did to provoke escrow company to disburse loan money without

appropriate assignment of security interest was done as attorney for buyer.

Jones v. Kootenai County Title Ins. Co. (1994) 125 Idaho 607, 873 P2d 861.



 Ultimate purchaser of general partners' interests in partnerships that owned and

operated two power plants did not tortiously interfere with a prospective

purchaser's contract to purchase those interests by agreeing with a

nonparticipating partner to purchase the interests if that partner exercised its right

of first refusal; nonparticipating partner's consent was an express condition to

general partner's obligation to transfer its partnership interests, and without that

consent, there were no actionable contractual rights that could have been the

subject of interference. Indeck North American Power Fund, L.P. v. Norweb plc,

316 Ill. App. 3d 416, 249 Ill. Dec. 45, 735 N.E.2d 649 (App. Ct. 1st Dist. 2000);

West's Key Number Digest, Torts 12.



 Former sales manager of company and competitor company tortiously interfered

with company's expected contract to install telephone system in jail, even though

competitor corporation was not in existence at time, where sales manager was

acting as agent of competitor when he convinced county that plaintiff company

was having financial difficulties and could not perform contract, which was

awarded to competitor corporation he was in process of organizing. Kantel

Communications v. Casey (1993, Mo App) 865 SW2d 685.



 While New York law recognizes the tort of interference with both prospective and

existing contracts, greater protection is accorded an interest in an existing

contract, as to which respect for individual contract rights outweighs the public

benefit to be derived from unfettered competition, than to the less substantive,

more speculative interest in a prospective relationship, as to which liability will be

imposed only on proof of more culpable conduct on the part of the interferer.

White Plains Coat & Apron Co., Inc. v. Cintas Corp., 8 N.Y.3d 422, 835 N.Y.S.2d

530, 867 N.E.2d 381 (2007); West's Key Number Digest, Torts 213.



 Plaintiff party to real-estate sales agreement did not have cause of action against

broker for intentional interference with contract where, because of needed but

not-yet-obtained approval of attorneys for both sides, contract was not yet

enforceable, and plaintiff failed to raise triable issue as to defendant's conduct

involving fraud, duress, breach of fiduciary duty owed to plaintiff, or similar

misconduct. Pepitone v. Sofia (1994, 4th Dept) 203 App Div 2d 981, 611 NYS2d

375.



 Defendants, who agreed to provide loan to plaintiff in connection with his

purchase of commercial property, did not interfere with plaintiff's contract to

purchase property when they purchased property after plaintiff was not able to

close on property or obtain loan because he failed to satisfy several conditions

precedent to obtaining loan, notwithstanding that defendants commenced

negotiations with seller on day of closing before plaintiff's time to close had

expired, since negotiations began at behest of seller and subsequent to

withdrawal of financing, and contemplated purchase was expressly conditioned

on plaintiff's inability to close. Tayeh v. Intercoastal Capital Corp. (1991, 2d Dept)

176 AD2d 719, 574 NYS2d 801.



 No contract existed between prospective tenant and river authority so as to

support prospective tenant's action against lease recipient for tortious

interference with a contract, where river authority passed a resolution authorizing

authority's general manager to negotiate and execute a contract with prospective

tenant for additional land on which to expand a marina operation, but the

authority thereafter entered into a lease with a competitor, and prospective tenant

brought the action contending that the resolution constituted a contract, because

the resolution contemplated further staff action before contractual relations were

finalized. S & A Marinas v. Leonard Marine Corp. (1994, Tex App Austin) 875

SW2d 766, writ den (Sep 8, 1994).



 President and principal shareholder of parent corporation, which owned all of the

corporate stock in automobile dealership, could not be held liable for tortiously

interfering with employment agreements between dealership and its general

manager and advertising spokesperson where president owned 90 percent of

stock in parent corporation, was its chief operating officer, and acted as owner

and officer of parent corporation in terminating general manager's and

advertising spokesperson's contracts. Party to business relation cannot tortiously

interfere with himself. Interference with contractual relations or future business

relations is privileged where it results from exercise of party's own rights. Where

individual and his or her corporation are so closely aligned that they are one

entity, agent and principal are treated as one because agent is principal's alter

ego and their financial interest is identical. Lone Star Ford, Inc. v. Mc Ormick

(Tex App Houston (1992)) 838 SW2d 734, writ den (Jan 27, 1993).

 No contract, no injury: Developer did not establish injury, as element of

intentional interference with existing contractual relations, in action against

opponents of developer's proposed commercial development, alleging opponents

repeatedly urged landowner to breach his contract to sell land to developer;

contract contained condition precedent regarding city's approval of developer's

application for zoning change by specified date, developer elected not to waive

condition precedent when application was not approved by specified date, and

landowner therefore did not breach the contract, and instead the contract

expired. Anderson Development Co. v. Tobias, 2005 UT 36, 116 P.3d 323 (Utah

2005); West's Key Number Digest, Torts 242.



§ 8. Particular requirements—That defendant be aware of the plaintiff's contract

Knowledge by the defendant of the existence of the plaintiff's contract with another is a

prerequisite to liability for interfering with the agreement. Negligent interference with a

contractual relationship, absent such knowledge, does not constitute the tort of wrongful

interference.(FN2) Furthermore, the cases almost uniformly require that the plaintiff

show actual knowledge of the agreement by the defendant before the defendant will be

held liable for interference.(FN3) Therefore, in the hypothetical case considered in this

article,(FN4) the plaintiff's counsel should investigate all avenues to develop evidence

that the defendant knew of the existence of the talent agreement between the artist and

the plaintiff recording company.



Cases:



 Defendant was entitled to summary judgment dismissing cause of action alleging

intentional interference with contract where (1) defendant demonstrated that, at

time it hired employee of plaintiff, it had no knowledge of employee's

noncompetition agreement with plaintiff, and (2) plaintiff merely demonstrated

that its representative informed defendant, on day after defendant hired

employee, that it had "some agreements" with employee. Anderson Properties,

Inc. v. Sawhill Tubular Div., Cyclops Corp. (1989, 4th Dept) 149 AD2d 950, 540

NYS2d 82.



§ 9. Particular requirements—That defendant intentionally interfere with the

contract

Although malice in some form is an essential element of an action for tortious

interference with contract rights, such malice is ordinarily implied from the defendant's

act of intentionally interfering with the contract. The malice that must be proved is not

actual malice in the sense of personal hatred, ill will, or spite; instead, it is legal malice—

that is, the intentional doing of a harmful act without legal justification or excuse, such

as wilful interference with another's contract rights.(FN5) For example, assaulting a

performer with intent to render him unable to perform for the plaintiff is a clear example

of intentional interference with contract rights. On the other hand, the accidental

maiming of the performer by the defendant would not constitute the tort, even though

the defendant has knowledge of the plaintiff's rights under the contract and the

performer's injuries in fact interfere with his rendition of services to the plaintiff.(FN6) In

the hypothetical case developed in this article,(FN7) all facts that might show any intent

by the defendant to interfere with the plaintiff's exclusive contract rights to the artist's

song recordings should be thoroughly scrutinized by the attorneys for both parties.



Cases:



 Causation: Allegations in complaint filed by long-time friend and alleged

mistress of former President, that ex-President and his agents, by threatening

certain unnamed publishers, had interfered with her reasonable expectation of

selling "semi-autobiographical novel" based on their relationship, were

insufficient to state tortious interference claim, under District of Columbia law,

against agent whose alleged interference consisted solely of press conference

statements he made two years after woman and her agent had contacted

publishers; timing and content of statements was such as to negate any

inference of necessary causal connection between agent's statements and

woman's inability to find publisher. Browning v. Clinton, 292 F.3d 235, 59 Fed. R.

Evid. Serv. 301 (D.C. Cir. 2002); West's Key Number Digest, Torts 10(3).



 The tort of intentional interference with contractual relations is intentional in the

sense that defendant must have intended to interfere with the plaintiffs' contract

or have known that this result was substantially certain to be produced by its

conduct; consequently, a plaintiff must show more than the defendant's

knowledge that his or her conduct would induce a breach to establish intentional

interference with contractual relations. Mann v. GTCR Golder Rauner, L.L.C.,

483 F. Supp. 2d 864 (D. Ariz. 2007); West's Key Number Digest, Torts 215.



 Purported assignee of percentage of proceeds of letter of credit could not recover

from advising bank for tortious interference with contract based on bank's failure

to honor partial assignment made by beneficiary of letter of credit, absent

showing that bank induced beneficiary to breach its agreement to assign

percentage of proceeds of letter of credit. Weyerhaeuser Co. v. Israel Discount

Bank (1995, SD NY) 895 F Supp 636, 27 UCCRS2d 1112.



 Rhode Island Housing and Mortgage Finance Corporations (RIHMFC) did not

tortiously interfere with existing contracts between owners and management

agents of mortgaged properties and vendors that provided laundry services, for

purposes of tort of intentional interference with contractual relationships, by

instructing owners and management agents to renegotiate any laundry leases

that failed to generate minimum monthly income requirements of $3 per unit and

warning agents and owners that failure to comply with directive could result in

RIHMFC withholding equity distributions from owners, where vendors could have

stood firm on their contractual rights and refused to renegotiate, and directive did

not instruct owners and agents to breach their leases with vendors in event of

vendors' refusal to renegotiate. New England MultiUnit Hous. Laundry Ass'n v.

Rhode Island Hous. & Mortgage Fin. Corp. (1995, DC RI) 893 F Supp 1180.

 Interference with single provision: The tort of interference with a contractual

relationship necessarily, and logically, can properly include attempts to alter or

change only a single contractual provision benefitting the person bringing the

action; this is true whether the attempt is to extinguish the provision entirely or

instead simply to alter it, so long as the effect is to interfere with benefits

otherwise due the plaintiff. Ingalsbe v. Stewart Agency, Inc., 869 So. 2d 30 (Fla.

Dist. Ct. App. 4th Dist. 2004), review granted, 880 So. 2d 1213 (Fla. 2004);

West's Key Number Digest, Limitation of Actions 12.



 As a general rule, it is a question of fact, and thus for the jury, whether the

defendant in an action for tortious interference with a contract has played a

material and substantial part in causing the plaintiff's loss of any benefits of the

contract. Phillips v. MacDougald (1995) 219 Ga App 152, 464 SE2d 390, 95

Fulton County D R 3548.



 Interference with a contract right or relationship need not result in a breach of

contract to be actionable; it is sufficient if the invasion retards the performance of

the duties under the contract or makes the performance more difficult or

expensive. Phillips v. MacDougald (1995) 219 Ga App 152, 464 SE2d 390, 95

Fulton County D R 3548.



 Residents of rental complex, who had signed letter to complex owner alleging

that construction company which performed work at complex engaged in

unprofessional and illegal behavior, did not act with intent to procure breach of

contract between company and owner of complex, as would allow recovery

against residents on company's claim for tortious interference with business

relationship; residents had sought, through letter, to stop alleged offensive public

behavior, and did not seek to interfere in business relationship. Gosden v. Louis,

116 Ohio App. 3d 195, 687 N.E.2d 481 (9th Dist.Summit County 1996).



 In action by employee of boat dealer against lender that had security interest in

dealer's inventory and had assumed control of dealer's premises after dealer

defaulted, for intentional interference with employee's contracts to transport

boats, there were material issues of fact as to whether lender intentionally

interfered with employee's hauling contracts by improper means, thereby

precluding summary judgment in favor of lender, where employee's affidavit

alleged that lender intentionally interfered with his hauling contracts by refusing

him access to his property stored on dealer's premises, but where lender's

affidavits claimed that neither it nor its representatives were ever aware that

employee was party to contract requiring him to work on tractor or trailer during

weekend or risk losing contract, and that employee never attempted to remove or

risk losing contract, and that employee never attempted to remove any of his

personal property from dealer's property. If lender's conduct was found to be

intentional, fact finder could conceivably find that lender's alleged denial of

access to property amounted to conversion, which in turn would constitute

improper means. Mumford v. ITT Commercial Fin. Corp. (1993, Utah App) 858

P2d 1041, 219 Utah Adv Rep 49.



 Shopping center could not maintain action against competing center for tortious

interference with contract with tenant on grounds that competing center induced

tenant to move from plaintiff center, where contract between plaintiff center and

tenant allowed tenant to perform in one of two ways: (1) by not using premises,

but continuing to pay rent, or (2) by operating retail warehouse store on

premises. Thus, competing center's inducement of tenant to vacate plaintiff

center's premises was simply inducement of tenant to perform contract with

plaintiff center in one of the allowable ways. Sampson Invs. v. Jondex Corp.

(1993) 176 Wis 2d 55, 499 NW2d 177.



§ 10. Particular requirements—That defendant's interference lack justification

A party to a contract has a right of action against a third person who interfered with the

contract only if the third person acted without any legal justification.(FN8) The question

whether there was any justification for interfering with the agreement is generally held to

be an issue of fact for the jury.(FN9) However, long before the jury resolves the matter,

counsel for both the plaintiff and the defendant should make their own investigation to

ascertain whether or not the facts of the case can possibly show justification.



Although justification is the most common affirmative defense to an action for

interference, relatively few rules are available to determine the existence or absence of

justification. Much depends on the facts of the particular case, such as the nature of the

interference, the character of the rights interfered with, the relationships between the

various parties, the interest sought to be advanced by the interfering party, and the

desirability of protecting the contract rights over the freedom of action of the interfering

party. For example, a laudable motive, such as that of a parent seeking to protect a

child, may justify an interference with contract rights under some circumstances. Also, a

defendant with an existing economic interest to protect, such as an interest in the

ownership or condition of property, may be privileged to interfere with the performance

of the plaintiff's contract.(FN10)



Cases:



 Burden of proof: Employee who claimed that, under Pennsylvania law,

employer had tortiously interfered with his settlement negotiations with workers'

compensation carrier failed to produce sufficient evidence that employer had no

financial interest in transaction and thus no privilege or justification for

involvement therein; former claims handler for insurer testified that, although

employer's premiums for its workers' compensation insurance could depend in

part on claims paid, she did not know whether settlement amount was a sizeable

claim, how often insurer established its premiums, or whether payment of

settlement to employee would have affected employer's premium for its entire

policy. Buskirk v. Apollo Metals, 307 F.3d 160 (3d Cir. 2002); West's Key Number

Digest, Torts 27.

 Instruction permitting jury to find "wrongful means" necessary for exception to

competitors' privilege to apply to third party administrator's (TPA) tortious

interference with contract action against health maintenance organization (HMO)

if HMO used economic power in matter unrelated to its competition with TPA, or

violated federal antitrust law or Racketeer Influenced and Corrupt Organizations

Act (RICO), required remand, where jury returned general verdict, and it was

determined on appeal that TPA failed to support its antitrust or RICO claims. 18

U.S.C.A. §§ 1961 et seq.; Sherman Act, § 1, as amended, 15 U.S.C.A. § 1;

Fed.Rules Civ.Proc.Rule 51, 28 U.S.C.A. Brokerage Concepts, Inc. v. U.S.

Healthcare, Inc., 140 F.3d 494 (3d Cir. 1998).



 Where a satellite broadcasting network brought a tortious interference with

contract suit against a cable television network after the satellite network was

prevented from broadcasting a championship boxing fight, the cable network was

justified in interfering with the satellite network's broadcast because the cable

network was defending a valid superior contractual interest in a good-faith

manner. Personal Preference Video, Inc. v. Home Box Office, Inc. (1993, CA5

Tex) 986 F2d 110, reh, en banc, den (CA5 Tex) 992 F2d 326.



 Retail seller of ceiling fans failed to establish cause of action against competing

retailer for intentional interference with prospective economic advantage, despite

allegations that defendant-retailer told ceiling-fan manufacturer it would not carry

manufacturer's line of ceiling fans if they were made available to plaintiff and

manufacturer then refused to accept plaintiff's purchase order for ceiling fans.

Plaintiff's allegation that competing retailer intentionally interfered with its

business expectancy with manufacturer, even if true, fell within competitor's

privilege exception to tort of intentional interference with prospective economic

advantage. Defendant was acting to advance its interest at expense of its

competitor by securing contract with manufacturer and denying it to plaintiff, and

defendant's actions did not contribute to unlawful restraint of trade. A-Abart

Electric Supply, Inc. v. Emerson Electric Co. (1992, CA7 Ill) 956 F2d 1399, 1992-

1 CCH Trade Cases ¶69739, 22 FR Serv 3d 53 (applying Ill law).



 Assuming that bowling equipment manufacturer, which owned and operated

bowling centers across United States, prevailed on construction company that

built all of its bowling centers not to build bowling center for development

company that also owned and operated bowling centers, privilege of competition

protected manufacturer's conduct and it was not liable to competitor for alleged

interference with competitor's business relationship with contractor. Because

competitor's contractual relations with contractor were merely contemplated or

potential, manufacturer was free to refuse to deal with contractor unless they

ceased dealing with competitor. There was no showing that manufacturer's sole

motive in wedging itself between competitor and contractor, if it did so all, was

other than to advance its own economic interests. Los Angeles Land Co. v.

Brunswick Corp. (1993, CA9 Cal) 6 F3d 1422, 93 CDOS 7595, 93 Daily Journal

DAR 12971, 1993-2 CCH Trade Cases ¶70381, petition for certiorari filed (Feb 9,

1994).



 Under Florida law, where automobile dealership's proposed transfer and

relocation agreement with transferee was expressly conditioned upon

manufacturer's approval, manufacturer could not be liable for tortious

interference with the agreement, as a matter of law. Ernie Haire Ford, Inc. v. Ford

Motor Co., 260 F.3d 1285 (11th Cir. 2001); West's Key Number Digest, Torts

12.



 Agricultural lending bank did not tortiously interfere with borrower's contracts with

farmers by placing borrower in default after learning that borrower had not met

the requirements of loan's working capital covenant. CoBank, ACB v.

Reorganized Farmers Cooperative Ass'n, 334 F. Supp. 2d 1273 (D. Kan. 2004);

West's Key Number Digest, Limitation of Actions 12.



 Where two equipment manufacturers were competing to acquire contract to

upgrade store's point-of-sale hardware, and, after one firm almost completed

deal, second firm was able to supplant first firm, second firm's conduct was

protected by competitor's privilege, as (1) second firm's obtaining prototype of

first firm's solution, and first firm's bidding prices, was not wrongful, in that

transgressor, if any, was store management, who may have violated

confidentiality agreement between store and first firm; and (2) second firm's

extolling virtues of its product while disparaging first firm's solution was not

wrongful, in absence of evidence that second firm violated business ethic code or

made fraudulent misrepresentation. DP-Tek, Inc. v. AT & T Global Info. Solutions

Co. (1995, DC Kan) 891 F Supp 1510.



 Defendant mortgage company was not liable to plaintiff attorney for having

interfered with contract between plaintiff and a borrower since, although

defendant in effect caused borrower to terminate her contract with plaintiff by

requiring either that plaintiff furnish "approved closing agent protection letter" or

retain different attorney to handle closing of client's property transaction, (1)

borrower, rather than defendant, actually terminated relationship, (2) defendant's

conduct did not amount to discharge of plaintiff, and (3) defendant's conduct was

justified because defendant exercised its legal right and acted with legitimate

business purpose. Gailliard v. Fleet Mortgage Corp. (1995, DC SC) 880 F Supp

1085.



 Burden of proof: Court's error in improperly shifting the burden of proof between

subcontractor and contractor regarding subcontractor's alleged defense of

privilege of competition did not prejudice contractor, which was suing

subcontractor for interference with prospective economic advantage, as court's

instructions ultimately required contractor to establish that subcontractor's

conduct was not privileged. Gemini Aluminum Corp. v. California Custom

Shapes, Inc., 95 Cal. App. 4th 1249, 116 Cal. Rptr. 2d 358 (4th Dist. 2002),

review denied, (May 22, 2002); West's Key Number Digest, Appeal and Error

1046.3.



 Zoning moratorium: City did not unjustifiably interfere with contract or

prospective business relationship between vendor and purchaser of real

property, under Florida law, when it imposed six month moratorium on industrial

development of zoning district in which property in question was located;

moratorium had legitimate purpose of furthering city's interest in protecting health

and safety of its citizens. Watson Const. Co. Inc. v. City of Gainesville, 433 F.

Supp. 2d 1269 (N.D. Fla. 2006) (applying Florida law); West's Key Number

Digest, Torts 241.



 An individual is privileged to interfere with a contract when he acts to protect an

interest which the law deems to be of equal or greater value than the plaintiff's

contractual rights. Indeck North American Power Fund, L.P. v. Norweb plc, 316

Ill. App. 3d 416, 249 Ill. Dec. 45, 735 N.E.2d 649 (App. Ct. 1st Dist. 2000); West's

Key Number Digest, Torts 16.



 Corporate officer's conduct was privileged and thus plaintiffs failed to state cause

of action against him for tortious interference with contractual relations arising out

of one corporation's breach of agreement to purchase assets of another

corporation. Defendant was on board of directors of buyer corporation and its

parent corporation and was chairman of board of directors, president and major

shareholder of competitor corporation; he had duty to shareholders of these

corporations to exercise business judgment in managing their affairs. Plaintiffs'

allegations simply indicated that defendant's actions affected financial integrity of

corporation, not intention to induce breach of particular contract, and plaintiffs

failed to show that defendant's actions were totally unrelated to interest of

corporations or unjustified. M G D, Inc. v. Dalen Trading Co. (1992, 1st Dist) 230

Ill App 3d 916, 172 Ill Dec 736, 596 NE2d 15.



 Chiropractor who had been treating injured worker failed to establish claim for

tortious interference with business relationship against workers' compensation

insurer that was providing workers' compensation insurance to worker's

employer, where chiropractor alleged that he had been treating worker for

approximately three months when insurer issued letter advising that it would no

longer pay for any future treatment rendered by chiropractor to worker and

stating that it had been insurer's experience that employee was better served by

receiving treatment from orthopedic specialist rather than chiropractor, and

where worker then stopped seeing chiropractor. Because employer or insurer

had statutory right to select treating physician, insurer's choice of different

physician for worker was not illegal act. Furno v. Citizens Ins. Co. (1992, Ind

App) 590 NE2d 1137, transfer den (Jul 10, 1992).



 Under Massachusetts law, commercial lender did not knowingly induce

borrower's breach of its services contract with client by pressuring it to move

aggressively with respect to collection of prepayments from client, or by seizing

prepayments and applying them to borrower's loan, and thus lender's actions did

not constitute tortious interference with contractual relations, even though

lender's actions rendered borrower unable to comply with its obligations under its

services contract with client, where lender sought only what it was owed under

asset-based lending agreement, and lender advanced all funds to borrower

required by lending agreement. Schwan's Sales Enterprises, Inc. v. Commerce

Bank & Trust Co., 397 F. Supp. 2d 189 (D. Mass. 2005) (applying Massachusetts

law); West's Key Number Digest, Torts 242.



 Under Minnesota law, whether a party sued for tortiously interfering with

another's contract had justification for doing so is ordinarily a question of fact, not

properly resolved on motion for summary judgment; test is what was reasonable

conduct under the circumstances. In re Northwest Airlines Corp., 383 B.R. 283

(Bankr. S.D. N.Y. 2008) (applying Minnesota law); West's Key Number Digest,

Torts 272.



 Economic interest: In absence of malice or fraudulent or illegal means, holder

of 831/3% of shares of family business had economic interest, precluding any

claim that he tortiously interfered with business' contract to pay deferred

compensation to minority shareholders. Hirsch v. Food Resources, Inc., 24

A.D.3d 293, 808 N.Y.S.2d 618 (1st Dep't 2005); West's Key Number Digest,

Torts 242.



 Claim that lenders acted fraudulently with regard to borrowers' line of credit under

terms of credit financing agreement, by asserting that borrowers' access to credit

would not be affected by transaction costs that borrowers would incur in

purchase of competitor's assets, was sufficient to overcome lenders' defense of

justification to borrowers' tortious interference with contract claim; borrowers

alleged that they expressed concern about availability of credit line to fund

transaction costs and that inability to fund costs might place them in default

under credit agreement, that lenders assured borrowers that financial covenants

under credit agreement would be waived if purchase did not close, that lenders

aggressively encouraged purchase to secure fees, and that lenders froze line of

credit and notified borrowers they were in default when purchase was not

consummated, causing borrowers to default on payments to note holders.

Bestolife Corp. v. American Amicable Life, 5 A.D.3d 211, 774 N.Y.S.2d 18 (App.

Div. 1st Dep't 2004); West's Key Number Digest, Limitation of Actions 12.



 Under Ohio law one is privileged to purposely cause another not to perform

contract with third person when he in good faith is asserting legally protected

interest of his own, which he believes will be impaired or destroyed by

performance of contract; factors determining whether privilege exists to interfere

with contractual relations of others, under Ohio law, include (1) nature of actor's

conduct, (2) nature or expectancy with which his conduct interferes, (3) relation

between parties, (4) interest sought to be advanced by actor, and (5) social

interests in protecting expectancy on one hand and actor's freedom of action on

other hand. Re/Max Int'l v. Realty One (1996, ND Ohio) 924 F Supp 1474, 1996-

1 CCH Trade Cases ¶71434, 44 Fed Rules Evid Serv 1001 (applying Ohio law).



 Environmental concerns—statutory protection: Opponents of land

development project were not entitled to immunity from developer's tortious

interference with contract claim under The Participation in Environmental Law or

Regulation Act for their statements to potential home buyers and real estate

agents concerning their belief that the site was contaminated; homebuyers and

real estate agents were private citizens who comprised a very select audience,

and communications were not for the larger purpose of calling governmental or

public attention to any alleged contamination, or to influence the government in

its consideration or review of an environmental issue. 27 Pa.C.S.A. § 8301.

Penllyn Greene Associates, L.P. v. Clouser, 890 A.2d 424 (Pa. Commw. Ct.

2005); West's Key Number Digest, Torts 242.



 "Either he goes or I go": Threat by professional jai alai team's manager to

quit his position if team rehired a particular player, which purportedly

forced team to choose between rehiring player and losing a manager, did

not constitute intentional interference with player's prospective contractual

relations with team; manager had a right to be jobless rather than

supervise player and be accountable for his performance, and team had a

right to choose manager over player. Avilla v. Newport Grand Jai Alai LLC,

935 A.2d 91, 26 I.E.R. Cas. (BNA) 1588 (R.I. 2007); West's Key Number Digest,

Labor and Employment 904.



 In a tortious interference action by one publisher against another, the evidence

was insufficient to support the jury's finding that the defendant-publisher tortiously

interfered with the plaintiff-publisher's contracts and business relationships,

where the evidence showed that the defendant-publisher targeted the plaintiff-

publisher's clients for special discounts but did not establish that this was done

by use of wrongful means, intent to establish an illegal monopoly or without intent

to advance a competitive interest, because a party may cause a third party to

terminate an at-will contract with the party's competitor and may obtain a

competitive advantage by offering better contract terms. Caller-Times Pub. Co. v.

Triad Communications (1993, Tex App Corpus Christi) 855 SW2d 18, reh gr, in

part, remanded (Tex App Corpus Christi) 855 SW2d 18.



§ 10.3. Particular requirements—That defendant is not a party to the contract



Cases:



 A defendant is not a stranger to a contract or business relationship, and thus

cannot be held liable for tortious interference with contractual or business

relations under Alabama law, when: (1) the defendant is an essential entity to the

purported injured relations; (2) the allegedly injured relations are inextricably a

part of or dependent upon the defendant's contractual or business relations; (3)

the defendant would benefit economically from the alleged injured relations; or

(4) both the defendant and the plaintiff are parties to a comprehensive

interwoven set of contract or relations. MAC East, LLC v. Shoney's, 535 F.3d

1293 (11th Cir. 2008) (applying Alabama law); West's Key Number Digest, Torts

222.



 Minority owner of limited liability company (LLC), based on his ownership of ten

percent of LLC, had legitimate economic interest in LLC's contracts or business

relations with clients, so that minority owner was not a stranger to the contracts

or business relations and so that minority owner therefore acted with privilege,

thereby precluding liability to LLC, for tortious interference with contractual or

business relations, relating to minority owner allegedly, after his removal as

officer of LLC, but before sale to LLC of his interest in LLC, which sale was

triggered, under LLC's operating agreement, by his removal as officer, wrongfully

contacting LLC's prospective and existing clients to persuade them, allegedly

based on misinformation from minority owner that LLC was experiencing extreme

financial difficulties, to withhold their business from LLC. ULQ, LLC v. Meder, 293

Ga. App. 176, 666 S.E.2d 713, 27 I.E.R. Cas. (BNA) 1882 (2008); West's Key

Number Digest, Torts 241.



 Owners of buyer of distribution rights to certain non-prescription drugs were not

strangers to the contract, as required for seller to bring tortious interference with

contract claim against them, where owners signed portions of assignment of

rights, bill of sale and related promissory notes on behalf of buyer and guarantor,

and owners were sole officers and directors of buyer and guarantor. Hammer

Corp. v. Wade, 278 Ga. App. 214, 628 S.E.2d 638 (2006); West's Key Number

Digest, Torts 242.



 Only strangers to the contractual relationship and to the underlying business

relationship are liable for tortious interference. Tom's Amusement Co., Inc. v.

Total Vending Services, 243 Ga. App. 294, 533 S.E.2d 413 (2000), cert. denied,

(Sept. 29, 2000); West's Key Number Digest, Torts 10(1).



 Regardless of whether an employee is acting as an agent of his employer when

engaging in interference with contractual or business relationship with employer's

customers, employee is not a stranger to the business relationship between

employer and the customers employee personally services and, thus, cannot be

held liable under a claim of tortious interference; however, the competitor and its

agents who assist in the interference can be liable for tortious interference. Tom's

Amusement Co., Inc. v. Total Vending Services, 243 Ga. App. 294, 533 S.E.2d

413 (2000), cert. denied, (Sept. 29, 2000); West's Key Number Digest, Torts

10(1).



 Agent of party: Project engineer could not be liable for tortious interference with

construction contract between city and general contractor, though project

engineer was not a party to contract in the traditional sense, as project engineer

was city's agent by virtue of contract, which granted project engineer broad

discretionary authority to monitor general contractor's progress, and project

engineer was acting for benefit of city, such that it was not a stranger to the

contract. BECO Const. Co., Inc. v. J-U-B Engineers, Inc., 145 Idaho 719, 184

P.3d 844 (2008); West's Key Number Digest, Torts 242.



 Under Michigan law, corporate agents are generally not liable for tortious

interference with regard to the corporation's contracts or business relationships,

unless the agent acted purely for personal gain with no benefit to the corporation.

Wilson v. Continental Development Co., 112 F. Supp. 2d 648 (W.D. Mich. 1999)

(applying Michigan law); West's Key Number Digest, Torts 10(1).



 Customer's subsidiary: Under New York law, customer's subsidiary was not a

third party at time its negotiations with provider of web-based software, hardware,

and services for e-mail management and storage broke off, and, thus, customer

did not engage in tortious interference with business relationships by not

permitting anyone affiliated with subsidiary to continue negotiating with provider

after agreement between customer and provider was terminated, where

subsidiary was not spun off from customer until after its negotiations with

provider broke off. EchoMail, Inc. v. American Express Co., 529 F. Supp. 2d 140

(D. Mass. 2007) (applying New York law); West's Key Number Digest, Torts

241.



 Agent's interference: For purposes of a claim for tortious interference with

contract, to show that an agent has interfered with his or her principal's contract,

the plaintiff must prove the agent acted solely in furtherance of his or her

personal interests so as to preserve the logically necessary rule that a party

cannot tortiously interfere with its own contract. Latch v. Gratty, Inc., 107 S.W.3d

543 (Tex. 2003); West's Key Number Digest, Torts 12.



 Interference by agent of a party: The occurrence of an act of interference that

was willful and intentional, as element of tortious interference with a contract, is

particularly important when the defendant serves the dual roles of corporate

agent and the third party who allegedly induced the corporation's breach; in that

event, to preserve the logically necessary rule that a party cannot tortiously

interfere with its own contract, the plaintiff must prove that the corporate agent's

alleged interference was in furtherance of the agent's personal interests, not the

corporation's. Ed Rachal Foundation v. D'Unger, 117 S.W.3d 348 (Tex. App.

Corpus Christi 2003), reh'g overruled, (Oct. 9, 2003) and petition for review filed,

(Nov. 25, 2003); West's Key Number Digest, Limitation of Actions 12.



§ 10.5. Particular requirements—Malice



Cases:



 Franchisee's allegations that franchisor maliciously denied their application for

franchise sale approval in order to retake franchised restaurants was sufficient to

state claim for tortious interference with contractual or business relationship

under Florida law, despite franchisor's limited privilege to interfere with contract

under Florida law. Burger King Corp. v. Ashland Equities, Inc., 161 F. Supp. 2d

1331 (S.D. Fla. 2001); West's Key Number Digest, Torts 10(3).



 Financier which had been held liable for tortious interference with construction

contractor's business relationships, for filing fraudulent liens against property

associated with several of the contractor's projects, and for conversion, failed to

preserve for appeal its claims that the trial court improperly compelled the verdict

on the tortious interference claim, that the trial court improperly instructed the jury

on the conversion claim, and that because the verdict on the fraudulent lien claim

indicated that the financier had not acted with malice, the tortious interference

claim necessarily must have failed; these arguments appeared for the first time

on appeal. J.T.A. Factors, Inc. v. Philcon Services, Inc., 820 So. 2d 367 (Fla.

Dist. Ct. App. 3d Dist. 2002); West's Key Number Digest, Appeal and Error

173(1).



 Hospital that had contract with ambulance company, under which company was

given right to provide primary convalescent ambulance service for hospital, did

not tortiously interfere with sale of company to third parties by informing one

prospective purchaser that agreement could be terminated unless renewed on

yearly basis, that hospital had option to void contract on sale of ambulance

company, and that matter would have to be discussed by hospital authorities,

and by informing another prospective purchaser that hospital would not

automatically exercise its option to void contract if he purchased ambulance

service, but would agree to advance extension of contract on certain conditions.

Given that hospital reserved absolute right to void contract on sale of business,

its dealings with potential purchasers reflected no malicious intent, but rather

legitimate exercise of that right in best interest of hospital's operation. Life Care

Ambulance, Inc. v. Hospital Authority of Gwinnett County (1992) 202 Ga App

864, 415 SE2d 502, 103-37 Fulton County D R 12B.



 In action by real estate broker against motel purchaser for intentional interference

with prospective contractual relationship, alleging that purchaser interfered with

oral agreement between seller of motel and broker for payment of commission,

there was sufficient evidence to establish that purchaser's interference was

without justification, thereby permitting inference of malice, where one inference

that could be drawn from evidence was that purchaser intentionally deceived

seller as to its dealings with broker to avoid paying purchase price that would

have included broker's commission. Musselman Bros., Inc. v. Dial-Huff & Assoc.,

Inc. (1992, Ky App) 826 SW2d 838.



 In action by truck leasing corporation against leasing consultant, plaintiff failed to

establish that defendant intentionally interfered with plaintiff's prospective lease

with third party; in order to prevail under theories of intentional interference with

actual or prospective contract, plaintiff must establish that defendant acted

"improperly," as opposed to merely intentionally; evidence showed only that

defendant had motive to benefit itself and its customers financially, not that its

real motive was to hurt plaintiff. United Truck Leasing Corp. v. Geltman (1990)

406 Mass 811, 551 NE2d 20.



 Trial court erred in finding that vendors of real property tortiously interfered with

purchaser's contract to resell property to developer, even though vendors had

failed to close with purchaser as provided by court order, since purchaser failed

to demonstrate requisite "malice" to sustain tortious interference claim. Resale

agreement expired under its own terms because of title exception, not because

of plaintiffs' refusal to comply with trial court's order. Although title defect was

caused by plaintiffs' pending complaint for rescission and their refusal to dismiss

their claim, it could not be said that plaintiffs' pursuit of their complaint was

transgressive of generally accepted standards of morality. Their action seeking

rescission was well-grounded in law and fact, and their persistence in

prosecuting action and their refusal to dismiss to remove title exception was

motivated by well-founded desire to protect their legitimate interests in seeking

rescission rather than intention to gain economic advantage by undermining

purchaser's agreement withdeveloper. Baldasarre v. Butler (1992) 254 NJ Super

502, 604 A2d 112.



 Advertising agency and its principal (plaintiffs) failed to state cause of action

against former client (defendants) for intentional interference with prospective

economic advantage where it was alleged that defendants advised various

vendors that plaintiffs were responsible for payment of their services and that

defendants were not, and that these statements seriously injured plaintiffs, but

none of plaintiffs' allegations showed use by defendants of unlawful or wrongful

means. Rad Advertising, Inc. v. United Footwear Organization, Inc. (1989, 1st

Dept) 154 AD2d 309, 546 NYS2d 597.



 Shopping mall developer failed to establish cause of action for intentional

interference with prospective economic advantage, based on allegations that

competing shopping mall operator unlawfully and maliciously induced major

retailer to break off negotiations with plaintiff by conditioning retailer's opportunity

to lease space in other malls operated by defendant upon its taking space in

defendant's mall in same county in which plaintiff was proposing to build its mall.

Plaintiff's claim was based on alleged unlawful "tying" arrangement, but tying

claim was insufficient since no substantial volume of commerce was involved.

Moreover, exclusive malicious motivation is essential element of claim of tortious

interference with prospective business advantage and, since plaintiff's complaint

alleged that defendant was active competitor of plaintiff, plaintiff would not be

able to prove that defendant acted with exclusive malicious motivation. Pyramid

Co. of Rockland v. Mautner (1992, Sup) 153 Misc 2d 458, 581 NYS2d 562.



§ 10.7. Particular requirements—Motive

Cases:



 In action by small regional airline against large national airline for tortious

interference with regional airline's prospective economic advantage, based on

national airline's expansion of service on routes served by regional airline,

national airline successfully established defense of competitor's privilege where

regional airline did not contradict national airline's evidence that its motive in

expanding its service, at least in part, involved genuine competitive purpose.

Pacific Express, Inc. v. United Airlines, Inc. (1992, CA9 Cal) 959 F2d 814, 92

CDOS 2546, 92 Daily Journal DAR 4046, 1992-1 CCH Trade Cases ¶69770, cert

den (US) 121 L Ed 2d 686, 113 S Ct 814 (applying Cal law).



 Insurer was not acting with an improper motive when it entered into a defense

and indemnification (D & I) agreement with insured law firm, which caused law

firm to refuse to enter into proposed settlement agreement with plaintiffs suing

law firm for malicious prosecution, although insurer's objective was to prevent

execution of the settlement agreement, and thus insurer's action did not

constitute tortious interference with a prospective contractual relationship;

insurer's motive was to protect its own economic interests rather than to inflict

injury on the plaintiffs. Strojnik v. General Ins. Co. of America, 201 Ariz. 430, 36

P.3d 1200 (Ct. App. Div. 1 2001), review denied, (June 25, 2002); West's Key

Number Digest, Torts 12.



 In an action by a vending machine company against a competitor for intentional

interference with an exclusive contract to supply vending machines to a

restaurant, an improper motive on the part of the competitor was established

where the competitor not only induced the restaurant to breach its contract with

the plaintiff, but also supplied funds to move the plaintiff's machines out of the

restaurant and subsidized the restaurant's legal defense when the plaintiff

asserted its legal rights. Melo-Tone Vending v. Sherry, Inc. (1995) 39 Mass App

315, 656 NE2d 312.



 Individuals, who had organized to oppose landowners' application from town for

permit to construct telecommunications tower on their land, did not tortiously

interfere with landowners' contract with telecommunications company to lease

land for construction of tower; urging town to oppose permit was manifestly a

lawful purpose. U.S.C.A. Const.Amend. 1; McKinney's Civil Rights Law § 76-a.

Harris v. Town of Fort Ann, 35 A.D.3d 928, 825 N.Y.S.2d 804 (3d Dep't 2006);

West's Key Number Digest, Torts 243.



 In action to recover damages for tortious interference with business relationships,

defendant was entitled to summary judgment where (1) parties were competitors

and defendant's actions were motivated by self interest, rather than malice, and

(2) plaintiffs failed to come forward with evidence to show that defendant acted

improperly or unlawfully and, instead, made only conclusory allegations. Nassau

Diagnostic Imaging & Radiation Oncology Assocs., P.C. v. Winthrop-University

Hosp. (1993, 2d Dept) 197 AD2d 563, 602 NYS2d 650.



 Distributor had cause of action against manufacturer for tortious interference with

its sales associates, and question of fact existed as to whether manufacturer's

conduct was wrongful or merely in its own competitive interest (and thus a

defense), where (1) distributor alleged it had confidential relationship with

manufacturer, and (2) manufacturer terminated distributorship without prior notice

and hired distributor's employees and sales people. Zimmer-Masiello, Inc. v.

Zimmer, Inc. (1990, 1st Dept) 159 App Div 2d 363, 552 NYS2d 935, app dismd

without op 76 NY2d 772, 559 NYS2d 986, 559 NE2d 680.



 Tenured faculty member who was terminated for violating college's sexual

harassment policy failed to establish claim against college for interference with

contractual relations, where member produced no evidence that motives of

college were wholly or even partly unrelated to legitimate intent to enforce its

policy on sexual harassment, and there was no showing that wrongful means

were employed to advance such lawful purpose. Holm v. Ithaca College, 175

Misc. 2d 717, 669 N.Y.S.2d 483, 124 Ed. Law Rep. 1010 (Sup. Ct. 1998).



§ 11. Investigation of plaintiff's damages

All aspects of the plaintiff's damages must be carefully investigated by counsel. Counsel

should search for interference with substantial contract rights; interference that will

justify only an award of nominal damages is not enough.(FN11) In this connection,

counsel should remember that interference with contract relations is not limited to

procurement of a total breach of contract. Instead, it includes all invasions of the

contract relation that retard performance, prevent it entirely, or else render performance

of less value to the plaintiff.(FN12) However, before recovery can be had for alleged

actionable interference with the performance of a contract or for procuring its breach, it

must appear that the acts of the defendant were to the plaintiff's damage and that they

proximately caused the damage.(FN13)



Interference with contractual relationships is commonly a ground for the jurisdiction of

courts of equity. The remedy at law is often inadequate because the damages suffered

by the plaintiff cannot be compensated with money or cannot be estimated with

accuracy.(FN14)



Cases:



 Evidence supported award of $18 million to insured hospital for medical

malpractice insurer's tortious interference with business relations with physicians

who left hospital causing it to close; even if jury rejected certified public

accountant's (CPA) optimistic long-term cash flow projections in their entirety, it

still could have found that hospital's annual net patient revenues declined by $7

million in the near-term, that it lost $13 million in during 22 months before

closure, and it could have continued operating for at least another nine months

and earned an additional $5 million. NCRIC, Inc. v. Columbia Hosp. for Women

Medical Center, Inc., 957 A.2d 890 (D.C. 2008); West's Key Number Digest,

Damages 137.



 Evidence of lost future profit was relevant and admissible under the benefit-of-

the-bargain rule in a fraudulent misrepresentation case, where distributor, who

brought a tort action against manufacturer alleging claims for fraud and

intentional interference with business relationships, was allowed to present

evidence of profits it would have realized in the ensuing 5 years but for

manufacturer's fraudulent representations, despite manufacturer's argument that

future lost profits were not recoverable as a matter of law under the out-of-pocket

rule. Nordyne, Inc. v. Florida Mobile Home Supply (1993, Fla App D1) 625 So 2d

1283, 18 FLW D 2273, review dismd (Fla) 630 So 2d 1100.



 In an action by a vending machine company against a competitor for intentional

interference with an exclusive contract to supply vending machines to a

restaurant, the damages found by the jury were not speculative since the jury

could look to the evidence of the competitor's tainted profits as a measure of the

profits that the plaintiff was capable of generating at the restaurant. Melo-Tone

Vending v. Sherry, Inc. (1995) 39 Mass App 315, 656 NE2d 312.



 Facts alleged in complaint for tortious interference with contract did not require

inference, as matter of law, that damages were suffered in 1984 at time contract

was breached, rather than in 1988 as alleged by plaintiff, and thus action was not

time-barred, where breach occurred when third party entered into separate

agreement with defendant, third party nonetheless continued to honor financial

terms of contract with plaintiff, and thus plaintiff suffered no immediate economic

loss at time of breach. Kronos, Inc. v. AVX Corp. (1993) 81 NY2d 90, 595 NYS2d

931, 612 NE2d 289.



 In action by physician against hospital arising out of hospital's denial of

physician's application to obtain on-call emergency patient privileges for plastic

surgery patients, court properly dismissed claims based on denial of privileges

where such claims were barred by statute limiting aggrieved physicians to

injunctive relief, and where even though medical staff by-laws may form basis for

independent breach of contract or intentional interference with contractual

relations claim, physician in case at hand did not have contractual right to special

access to plastic surgery on call list, and had never maintained that hospital

violated its by-laws. Chuz v. St. Vincent's Hosp. (1992, 1st Dept) 186 App Div 2d

450, 589 NYS2d 17.



 A real estate developer who established that another developer tortiously

interfered with a contractual arrangement to purchase a property was not entitled

to damages based on the defendant's unjust enrichment. The correct measure of

damages in a tortious interference action is the plaintiff's loss (including lost

profits) arising out of the interference, not the defendant's gain. Developers Three

v. Nationwide Ins. Co. (1990, Franklin Co) 64 Ohio App 3d 794, 582 NE2d 1130,

motion overr 53 Ohio St 3d 705, 558 NE2d 61.



 In an action for tortious interference with a contractual relationship the damage

award was upheld notwithstanding the plaintiff's failure to prove the amount of

any profit it lost as a result of the defendant's interference. Once the trial court

found that interference had occurred, that the interfering party has unjustly

profited in the amount of the judgment, and that the amount of any lost profits

was not reasonably ascertainable, no finding of the plaintiff's lost profits was

necessary. Sandare Chemical Co. v. WAKO Int'l, Inc. (1991, Tex App Fort Worth)

820 SW2d 21.



 Nature of injury and applicable statute of limitations: Former employee's

allegedly severe physical and emotional health problems from former employer's

tortious interference with contract were "injuries to the person" within the

meaning of the three-year statute of limitations applicable to actions to recover

for injuries to the person, and, thus, the six-year catchall statute of limitations did

not apply; the allegation of lost income and other employment benefits did not

alter the essence or the underlying claim. 12 V.S.A. §§ 511, 512(4). Rennie v.

State, 762 A.2d 1272 (Vt. 2000); West's Key Number Digest, Limitation of

Actions 31.



 Expert testimony: Finding that certified public accountant was qualified to give

expert opinion on bidder's potential profit from government contract, in bidder's

action against protesting bidder for tortious interference with contract expectancy,

was supported by evidence that accountant had served as bidder's chief financial

officer for four years, that accountant's responsibilities for bidder included such

tasks as financial reporting, budgeting, forecasting, cost proposal review, and

banking and insurance matters, and that accountant had reviewed bid proposal

and validated direct costs associated with project, and by accountant's

explanation of method used to determine revenue he estimated bidder would

receive from contract. Lockheed Information Management Systems Co., Inc. v.

Maximus, Inc., 259 Va. 92, 524 S.E.2d 420 (2000); West's Key Number Digest,

Evidence 543.5.



§ 11.5. Investigation of plaintiff's damages—Punitive damages



Cases:



 Punitive damages were appropriate under Illinois law in attorney's action against

his former partner for tortious interference with contract, which arose from

defendant informing client that, because plaintiff refused to pay his alleged share

of costs associated with law partnership's breakup, client should withhold

plaintiff's share of proceeds of settlement of action in which law partnership

represented client; rational jury could have found that defendant's conduct was

worse than minimum required because it had flavor of extortion, and extortion

was not element of tort of intentional interference with contract. Sufrin v. Hosier,

128 F.3d 594 (7th Cir. 1997).



 Punitive damages award of $4 million against former state regulator, on

compensatory award of approximately $395,000 for tortious interference with

contractual relations and business expectancy, violated due process, and

punitive award of no more than three times compensatory award was

permissible; lesser punitive award sufficed for deterrence and punishment, and

indicia of reprehensibility were mostly absent, i.e. any harm was non-physical

and caused to large corporation rather than individual, reckless disregard of

others' safety was not involved, corporation was not financially vulnerable, and

incident was isolated. U.S.C.A. Const.Amend. 14. Southern Union Co. v. Irvin,

548 F.3d 1230 (9th Cir. 2008); West's Key Number Digest, Constitutional Law

4427.



 Imposition of punitive damages award of $60 million against former state

regulator on compensatory damages award of $390,072 for tortious interference

with contractual relations and business expectancy violated due process; abuse

of regulator's official powers in favor of private interests of specific utility and his

own personal interests, coupled with evidence of regulator's failed attempt to

introduce fabricated evidence and his destruction of subpoenaed documents,

although highly reprehensible, could not support 153-to-1 ratio of punitive

damages to compensatory damages. U.S.C.A. Const.Amend. 14. Southern

Union Co. v. Southwest Gas Corp., 415 F.3d 1001 (9th Cir. 2005), opinion

amended on denial of reh'g, 423 F.3d 1117 (9th Cir. 2005); West's Key Number

Digest, Damages 94.10(1).



 $50 million award to quick lube franchisor in action against oil supplier for fraud

and intentional interference with present and prospective economic advantage

was excessive where misconduct attributed to oil supplier's employees involved

no violence, no physical injury to individuals or destruction of property, no threat

to public health or safety, no public corruption or criminal conduct of any kind;

where, although oil supplier's wrongdoing eliminated fast-growing company, any

societal loss that might have ensued from this conduct did not justify $50 million

award; and where case was not one that warranted high punitive damage award

as vehicle for disgorging "profitability of misconduct" since there was no evidence

of any corporate gain from alleged misconduct of oil supplier's employees.

Moreover, franchisor's persistent theatrical displays—tears, raised eyebrows and

facial grimaces—all done to arouse undue passion and prejudice, effectively

impeded oil supplier's chance for fair trial. Lightning Lube v. Witco Corp. (1992,

DC NJ) 802 F Supp 1180, 36 Fed Rules Evid Serv 845, costs/fees proceeding

(DC NJ) 144 FRD 662 and affd (CA3 NJ) 4 F3d 1153, RICO Bus Disp Guide

(CCH) ¶8379, 26 FR Serv 3d 1468 and later proceeding (CA3 NJ) 8 F3d 811.



 In action by independent producers and marketers of natural gas against

corporation that operated gas transmission pipeline system for tortious

interference with contracts and prospective business advantage, jury's award of

$30 million in punitive damages was not excessive, notwithstanding jury awarded

actual damages of only $269,000 and ratio between actual and punitive damages

was more than 111 to 1, where award was justified by cause and extent of

plaintiffs' injury, by harm caused to society, by defendant's profit incentive, and

by defendant's substantial wealth, award being less than 1 percent of defendant's

net worth of $6 billion. Continental Trend Resources, Inc. v. Oxy USA, Inc. (1992,

WD Okla) 810 F Supp 1520.



 Statute barring recovery of punitive damages on defamation claim as to which

defendant has issued retraction did not bar computer broker's recovery of

punitive damages on claim for tortious interference with contract that was based

on competitor's allegedly libelous statements in an e-mail, notwithstanding

retraction. West's Ga.Code Ann. § 51-5-11. U.S. Micro Corp. v. Atlantix Global

Systems, LLC, 278 Ga. App. 599, 630 S.E.2d 416 (2006); West's Key Number

Digest, Damages 89(1).



 Punitive damage award of $1,000,000 against attorney and his law firm was not

excessive in landlords' action for wrongful use of civil proceedings, abuse of

process and intentional interference with contractual relations arising out of

attorney's representation of client in equity action against landlords, where

attorney indulged his client's desire to wield every available legal mechanism

against landlords without hope of success, simply to harass them and cause

them to suffer emotional and financial harm, assisted in prolonging this design for

many years, and resorted to baseless efforts to interfere with landlords' property

rights long after his client's business was irretrievably lost, all in return for

significant remuneration. Shiner v. Moriarty, 706 A.2d 1228 (Pa. Super. Ct.

1998), reargument denied, (Mar. 19, 1998).



 Punitive damages may arise in breach of contract cases under the following

circumstances when complaining party can prove independent tort that is

separate and distinct from breach of contract: conversion; forgery; breach of

fiduciary duty; tortious interference with business expectancy; intentional

breaches accompanied by willful acts of violence, malice, or oppressive conduct;

fraud; and breach of covenant of good faith and fair dealing. Grynberg v. Citation

Oil & Gas Corp., 1997 SD 121, 1997 WL 678172 (S.D. 1997).



 Statutory treble damages: Award of $70,440.19 in compensatory damages for

employer on its intentional inducement to breach contract claim against former

executives who established competing business was excessive, and would be

reduced to $25,131.38, which was to be trebled pursuant to statute; amount

awarded in trial court represented three years of income that former executives'

business received from customer after they induced customer to breach contract,

under employer's contract customer had the option once a year to renew or shop

for another provider, there was no evidence that customer would have chosen to

renew its contract with employer, one of the executives had a long relationship

with customer, former executives were under no contractual obligation to refrain

from competing with former employer, and $25,131.38 represented the income

former executives' business received from customer in the year they induced

customer to breach contract. West's T.C.A. § 47-50-109. B & L Corp. v. Thomas

and Thorngren, Inc., 162 S.W.3d 189, 20 I.E.R. Cas. (BNA) 1712 (Tenn. Ct. App.

2004), appeal denied, (Jan. 10, 2005); West's Key Number Digest, Damages

137.



III. Motion for Temporary Injunction



§ 12. In general; plaintiff's grounds for relief

On concluding, after his investigation of the case, that his client has a valid cause of

action for tortious interference with contract rights, such as the contract rights

mentioned in the hypothetical case noted earlier,(FN15) the plaintiff's attorney must then

consider whether to move for a temporary restraining order against the interfering

party.(FN16) As a general rule, to obtain such injunctive relief counsel must show that

his client has no adequate remedy at law for his losses from the interference

complained of. In some cases, a sufficient showing that no adequate remedy at law

exists can be made by proof that the defendant has unjustifiably induced an artist of

unique talents, whom the plaintiff had under an exclusive contract, to perform services

for the defendant or for another in violation of his contract with the plaintiff.(FN17) In any

event, to warrant a temporary injunction to protect the plaintiff's rights pending the trial,

a pressing need for relief must be shown, based on all the circumstances of the case.



With regard to the type of interference noted in the hypothetical fact situation stated

earlier,(FN18) it will frequently not be feasible for the plaintiff to enjoin a performer, such

as a singer, from rendering services to others in violation of the plaintiff's exclusive

talent contract. For example, the performer's services to the defendant may be rendered

outside the jurisdiction. Again, as in the case of disc records or tape recordings, the

services may be rendered surreptitiously or outside the glare of the publicity that usually

attends a public performance. On the other hand, if the contract interference

complained of consists of the reproducing of songs sung by the artist in a movie made

for another person, instead of the plaintiff who has an exclusive right to all the artist's

song recordings, the plaintiff's attorney usually can obtain injunctive relief against

distribution or exhibition of the film or the song recordings reproduced therefrom. Often,

the mere threat of an injunction, will serve as an effective remedy. The producer or

distributor of the motion picture, or of the phonograph recordings of songs from the film,

will be less likely to interfere with the plaintiff's exclusive talent agreement if he realizes

that he risks an injunction against the distribution or exhibition of the fruits of such

interference. In applying for such injunctive relief, it should be noted, the plaintiff should

seek an order enjoining both distribution and further manufacture of the records from

the film. The order should be directed against the following parties: The producer-

director of the motion picture, the motion picture company, the records manufacturer,

and the distributor of the records.(FN19)



§ 13. Defense tactics in opposing the injunction

If the facts of the case permit, the attorney for the defendant can oppose the plaintiff's

motion for a temporary injunction by interposing such standard defenses as the

plaintiff's laches in seeking relief, of his acquiescence in the defendant's conduct, or his

waiver of the right to seek relief.(FN20) Should these defenses prove unavailing, the

defense attorney may then seek to prevent the operation of the temporary injunction or

restraining order by requesting that the plaintiff be required to post a bond with respect

to each defendant restrained by the injunction.(FN1) This bond will make the plaintiff

accountable to each defendant for any damages that the defendant may sustain as a

result of the granting of the injunction, in the event that it is ultimately decided that the

plaintiff was not entitled to it.(FN2)



IV. Institution of Suit



§ 14. In general; letter to defendant complaining about the interference

Although the action formally commences with the service of a summons and a

complaint, as a practical matter it frequently is initiated by a letter from the plaintiff's

lawyer to all of the possible defendants in the action. This letter should be sent by

registered mail, with a return receipt requested. In the letter, the plaintiff's counsel

should succinctly state the nature of his client's rights under the contract and demand

that the individuals named in the letter cease all conduct characterized by the letter as

constituting actionable interference with the plaintiff's rights. In a situation involving

alleged interference with an exclusive talent agreement, such as that mentioned earlier

in this discussion,(FN3) the letter written by the plaintiff's attorney might well be as

follows:



(Date)

(Names and addresses of potential defendants)



Re: (artist)



Gentlemen:



As attorneys for the (Name) Record Company, we address this communication to you

on its behalf.



Our client has a written contract with (artist), under the terms of which she has agreed

to render to our client her exclusive services in the production and distribution of

records. We are informed that you were fully apprised of this fact and that

notwithstanding this knowledge, you have produced and are in the process of

distributing a long-playing record by (the artist) entitled (title of record). You have also

used the name and photograph of (artist) without our client's consent, although the

rights thereto in connection with the sale and distribution of her records are granted

solely to our client under the above-mentioned contract.



This is to advise you that unless you immediately cease and desist in the manufacture

and distribution of these records and the use of the name and photograph of (artist) in

connection therewith, we are instructed to institute legal proceedings against you to

enjoin such manufacture, sale, and distribution.



Please be further advised that our client intends to hold you responsible and

accountable for all damages and losses incurred by reason of such interference with

contract rights on your part.



Kindly acknowledge receipt of this communication and advise us of your intentions in

this matter.



Very truly yours,



___________________

Attorneys for Plaintiff



Registered Mail Return Receipt Requested



§ 15. Defense counsel's reply

The defense attorney for the person or persons receiving a letter claiming interference

with a contract, such as an exclusive talent agreement, may choose to reply to the letter

by simply denying the claim or by merely acknowledging receipt of the letter. Lawyers

differ on the wisdom of a reply denying a claim. Some maintain that an answer is

required because a failure to refute the plaintiff's charges may be considered an

admission of them. Other lawyers feel that an answer will dignify the claim and also risk

making a statement that may boomerang at trial. These latter lawyers recommend, at

most, a mere acknowledgment of receipt of the letter for the sake of courtesy.(FN4) In

any event, counsel should not reply to the plaintiff's letter until he has had time to

interview his client or clients to determine all relevant facts of the case.



§ 16. Choosing the forum

A cause of action for interference with contract rights is ordinarily a matter for a state

court. However, certain causes of action for intentional interference with a contract may

involve the application or interpretation of a federal statute and thus fall within the

jurisdiction of the federal courts. For example, if a copyright owner grants a publisher

the exclusive publishing rights to a certain copyrighted work and a third party

intentionally interferes with such publishing rights on the pretext that the copyrighted

work is actually in the public domain, a federal court conceivably might assume

jurisdiction of the publisher's action for tortious interference with his right to publish the

work(FN5) because of the federal questions presented. By the same token, if the

publisher brought suit in a state court, the defendant might have the right to remove the

action to the federal court, in order to have the copyright issue determined.(FN6) In the

same hypothetical fact situation, furthermore, if intentional interference is threatened by

the defendant but has not yet occurred, appropriate remedy for the plaintiff might be

under the Federal Declaratory Judgment Act.(FN7)



In any event, if the plaintiff has a choice of forum, all relevant considerations should be

carefully weighed by plaintiff's counsel.(FN8) The defense attorney should similarly

evaluate all relevant factors affecting the choice of forum, especially where there is a

possibility of removal from a state to a federal court.(FN9) Particularly important factors

affecting the choice of forum include the broader discovery procedures available in the

federal court, a possible difference in the limitations period, and also the availability in

the federal court of injunctive relief that is multistate in scope and effect.



Cases:



 California corporation was subject to specific personal jurisdiction in

Pennsylvania on claim that it tortiously interfered with Pennsylvania corporation's

contract, by inducing customers to breach their contracts; Pennsylvania

corporation performed all of its services for clients from its Pennsylvania offices,

and alleged interference with contracts was expressly aimed at Pennsylvania.

Fed R Civ P Rule 4(e); 42 Pa.C.S.A. § 5322(b). Bank Express Intern. v. Kang,

265 F. Supp. 2d 497 (E.D. Pa. 2003); West's Key Number Digest, Federal Courts

79.



§ 17. Choosing the remedy

Relief may be had for wrongful interference with a contract, as by procuring its breach,

in either law or equity. Injunctive relief is granted in equity to restrain an unjustifiable

interference with the contractual relation. An action to recover damages for the

interference, on the other hand, is ordinarily prosecuted on the law side of the

court.(FN10)



If the plaintiff seeks only injunctive relief, the case, being on the equity side of the court,

will generally be tried by the court without a jury. However, under modern statutes

courts are empowered to award both injunctive relief and also damages for past tortious

acts of the same type sought to be enjoined. Indeed, even in the absence of such

statutory jurisdiction, a court can exercise its historic plenary equity power to retain the

cause and award complete relief therein.(FN11)



Whenever possible, the plaintiff's attorney should always seek an accounting from the

defendant of all profits or other benefits that the defendant has received as a result of

his wrongful interference with the plaintiff's contract rights. It has been held, for

example, where the defendant interfered with the plaintiff's contract to receive all goods

manufactured by another, that the plaintiff was entitled to an accounting from the

defendant concerning the goods that the defendant received from the manufacturer as a

result of the defendant's wrongful interference.(FN12)



Cases:



 Tortious interference with contractual relations claim against third party, for

allegedly encouraging employer to breach agreement with retirees regarding

health care benefits, was not preempted by ERISA, as it was not brought to

enforce rights of aggrieved party, and was brought specifically against

nonfiduciary third party as federal common law or non-preempted state law

claim. Employee Retirement Income Security Act of 1974, §§ 502, 514(a), 29

U.S.C.A. §§ 1132, 1144(a); Labor Management Relations Act, 1947, § 301, 29

U.S.C.A. § 185. Fox v. Massey-Ferguson, Inc., 172 F.R.D. 653 (E.D. Mich.

1995), order aff'd, 91 F.3d 143 (6th Cir. 1996).



 It is unlawful for nonparties to a contract, without lawful excuse, to induce the

maker of the contract to break it, or to aid the maker in breach of the contract. A

combination between the maker and others to break a contract is a conspiracy,

which entitles the other party to the contract to bring an action against the

conspirators for any damages that he or she sustained. Greenwood & Co. Real

Estate v. C-D Investment Co. (1993) 18 Cal App 4th 261.



 Contracting parties can be held liable in tort for conspiring with others to breach

their contracts. Thus, a complaint filed by a real estate broker against an investor

and a limited partnership stated a cause of action for conspiracy to interfere with

contractual relations or prospective economic advantage, where the broker had

entered into a listing agreement with a building owner, and the building owner

and the investor then formed the limited partnership to hold title to the building, at

which point the limited partnership entered into an agreement with a lessee and

failed to pay the broker a commission. Defendants had also been found liable in

separate action for breach of the listing contract. However, there was ample

evidence that defendants had conspired with the original building owner to

breach the listing agreement, and it was undisputed that the conspiracy was

formed and set in motion at a time when defendants were not parties to the

contract. Moreover, the conspiracy resulted in a breach of the contract, since

plaintiff was not paid a commission. Greenwood & Co. Real Estate v. C-D

Investment Co. (1993, 2nd Dist) 12 Cal App 4th 1459, 93 CDOS 873, 93 Daily

Journal DAR 1786, mod, reh den (Cal App 2nd Dist) 93 Daily Journal DAR 2759.



 It is unlawful for nonparties to a contract, without lawful excuse, to induce the

maker of a contract to break it, or to aid the maker in a breach of the contract. A

combination between the maker and others to break the contract is a conspiracy,

which entitles the other party to the contract to bring an action against the

conspirators for any damages that he or she sustains. Greenwood & Co. Real

Estate v. C-D Investment Co. (1993, 2nd Dist) 12 Cal App 4th 1459, 93 CDOS

873, 93 Daily Journal DAR 1786, mod, reh den (Cal App 2nd Dist) 93 Daily

Journal DAR 2759.



§ 18. Parties

The basic rules and principles that pertain to parties generally apply, of course, to an

action for interference with contract rights.(FN13) For instance, the plaintiff should

ordinarily join as many defendants as possible in the action. In the illustrative case

mentioned in § 2, the defendants might be (1) the motion picture company and its

president, (2) the producer-director of the motion picture, (3) the distributor of the motion

picture, (4) the manufacturer of the film's sound-track recordings, (5) the distributor of

the sound-track recordings, and (6) the recording artist under contract to the

plaintiff.(FN14)



The motion picture company should be named as a defendant, since in all probability it

issued the license to the manufacturer of the phonograph records on which were

reproduced the songs sung by the plaintiff's artist in the motion picture company's film.

The president of the motion picture company and the producer-director of the film

should also be designated defendants, since they quite probably played a direct role in

the commission of the tort of contract interference against the plaintiff. There is also

another, and perhaps more important reason for joining as individual codefendants the

president of the motion picture company and the producer-director of the film.

Independent film producers often form separate corporations for each film production.

Thus there is a real possibility that the defendant motion picture company itself might

prove to be only a shell corporation, with few or no assets, so that a judgment against it

alone would be of little value.



The distributor of the film, from whose sound track the recordings complained about

were taken, should be designated a defendant for two very sound reasons. First, since

the corporate structure of the motion picture production company is often a shell created

for tax reasons, it will often be discovered that the film's distributor has played a very

important role in the film's production. Often the distributor will provide financing for the

film, production facilities, production personnel, literary properties, major and minor

actors, and so on. In exchange for furnishing these important ingredients, the distributor

will acquire a considerable degree of control over the production of the picture and its

subsequent exploitation. In such case, a wrong decision by the producer respecting

interference with the plaintiff's contract rights might also constitute a wrong decision by

the distributor. The second reason for joining the distributor is that generally he acquires

not only the exclusive right of distribution of the picture but also the exclusive right to

exploit subsidiary rights in the film or, in other words, the film's by-products. In the

present case, of course, the songs wrongfully reproduced from the film would clearly be

part of its by-products.



The designation of the manufacturer of the phonograph records that reproduced

recordings from the film's sound-track, and also the distributor of these records, is

essential. If any tort at all was committed against the plaintiff, it was certainly the

manufacture and distribution of these phonograph records. It is entirely likely that the

record manufacturer and the record dstributor, because of their extensive activities in

the records industry, would be aware of the plaintiff's exclusive contract right to the

recordings of the artist in question. Furthermore, since it is a matter of common

knowledge in the record industry that topflight artists are often under an exclusive

contract to perform, the court might even grant a temporary restraining order against

these two defendants prior to any showing of actual knowledge on their part about the

existence of the plaintiff's exclusive talent contract.(FN15)



If there is any doubt whether the artist involved in the case had granted the recording

rights in issue to the motion picture production company, the artist should clearly be

named a defendant. If subsequent examination of the film contract between the artist

and the motion picture production company shows that such rights were not granted by

the artist, he or she can thereafter be dismissed as a party defendant.



Cases:



 In action by parent corporation against president of subsidiary corporation

alleging tortious interference with lease, based on fact that president negotiated

termination of lease between parent corporation and tenant, trial court erred in

granting president's motion for summary judgment; president "participated" in

lease cancellation and thus could be held personally liable to parent corporation

for tortious interference. Itofca, Inc. v. Hellhake (1993, CA7 Ill) 8 F3d 1202.



 Inasmuch as relationship between attorney and his client is that of principal and

agent, attorney is not liable for inducing client to breach contract with third

person, at least where attorney is acting on behalf of client within scope of his

authority; absent showing of fraud or collusion, or of malicious or tortious act,

attorney is not liable to third parties for purported injuries caused by services

performed on behalf of client or advice offered to that client. Kline v. Schaum,

173 Misc. 2d 108, 661 N.Y.S.2d 906 (App. Term 1997).



§ 19. Pleadings— Complaint

After the defense attorneys have an opportunity to respond to the letter sent by the

plaintiff's attorney complaining of the alleged interference with contract rights,(FN16) the

plaintiff's attorney can then commence the action by the service of a proper summons

and complaint. The summons and complaint, moreover, can also be accompanied by a

motion for a preliminary injunction.(FN17)



In an action for damages for contract interference, such as procuring the breach of a

contract, the plaintiff must allege and prove the essential elements of the asserted

wrong. In particular, it is essential to aver the defendant's knowledge of the contract

interfered with. A prima facie case of wrongful interference with a contract is made out if

it is alleged that the acts were intentional and wilful; that they were calculated to cause

damage to the plaintiff in his lawful business; that they were done without right or

justifiable cause on the part of the defendant; and that actual damage and loss resulted.

The complaint need not set out the contract; it will be sufficient merely to state the

contract's effect, so far as is material. The complaint also need not allege that the

plaintiff complied with his duties under the contract.(FN18)



The following is a checklist of allegations that should be included in the complaint in a

cause of action for inducing a breach of contract:



 Residence or other jurisdictional facts, if required.

 The contract between the plaintiff and the artist or other performer, and the

breach of the contract induced by the defendant.

 The defendant's knowledge of the existence of the contract.

 The defendant's intentional procurement of its breach (using words sufficient to

show malice; that is, that the defendant's acts were wilful, intentional, and

calculated to cause damage).

 That the wrongful acts proximately caused the breach of contract.

 That the wrongful acts were not justified.

 That damage or loss resulted to the plaintiff from the breach.



Ordinarily, to recover exemplary damages the plaintiff's counsel must demand them in

the complaint.(FN19) To support this demand, the complaint should specifically allege

that the contract interference was the result of deliberate and intentional malice,

oppression, or fraud on the part of the defendant or defendants—that is, that malice in

fact, as distinguished from malice in law, existed with respect to the interference in

issue.(FN20)



If an injunction is sought, the complaint should include an allegation that the plaintiff has

no adequate remedy at law in damages to compensate for the injury suffered, as where

the contract rights interfered with were unique and actual damages for their loss are not

susceptible of accurate computation.(FN1)



Cases:



 In action by physician against hospital, its medical director, and two affiliated

corporations, relating to their handling of his application for admitting privileges

at, and appointment to medical staff of, hospital, plaintiff's allegations, including,

inter alia, allegations that defendant purposefully applied peer review process

discriminatorily to him to interfere with his function as physician, and that

defendants' failure to afford him the process and protections encompassed in its

bylaws amounted to arbitrary, capricious, and otherwise discriminatory conduct

against him as physician, were adequate to plead claim for tortious interference

with plaintiff's business relationship with his patients. Okusami v. Psychiatric Inst.

of Washington, Inc. (1992) 295 US App DC 58, 959 F2d 1062, 1992-1 CCH

Trade Cases ¶69765.



 Allegations by plaintiffs, marketers of "La Famosa" tortilla chips, that defendants

intentionally and unlawfully marketed tortilla chips under confusingly similar name

of "La Famous" and that such confusion caused plaintiffs loss of sales and other

damage, were sufficient to support claim for intentional interference with

prospective contractual relations and motion to dismiss would be denied. Duran

v. Clover Club Foods Co. (1985, DC Colo) 616 F Supp 790 (applying Colorado

law).



 Allegation that franchisor's officers tortiously interfered with potential contract

between franchisor and investors interested in securing franchises, by acting for

officers' private gain, stated cause of action for interference with contractual

relationship. Lui Ciro, Inc. v. Ciro, Inc. (1995, DC Hawaii) 895 F Supp 1365.

 Complaint of borrowers and guarantors on various debts sufficiently alleged

tortious interference with contract claim against lenders and note holders;

complaint alleged that if borrowers' purchase of competitor did not close, lenders

would freeze borrowers' line of credit in order to place them in default with banks

and note holders, that borrowers would then be forced to renegotiate credit terms

in manner more favorable to creditors, and that lenders and note holders

knowingly and without justification committed acts that interfered with borrowers'

contract with competitor, causing borrowers to breach contract with note holders

and resulting in damage. Bestolife Corp. v. American Amicable Life, 5 A.D.3d

211, 774 N.Y.S.2d 18 (App. Div. 1st Dep't 2004); West's Key Number Digest,

Limitation of Actions 12.



 On defendant's motion for summary judgment in action for intentional

interference with contract, court improvidently exercised its discretion in granting

plaintiff leave to serve amended complaint asserting additional causes of action

for interference with prospective business relations and prima facie tort where

plaintiff failed to serve cross motion requesting such relief and did not provide

court with either proposed amended pleading or affidavit showing that proposed

amendment had merit. Anderson Properties, Inc. v. Sawhill Tubular Div., Cyclops

Corp. (1989, 4th Dept) 149 AD2d 950, 540 NYS2d 82.



 In action by state licensed chiropractor who alleged that state attorney general

and public corporation providing workers' compensation insurance intentionally

interfered with his economic and contractual relations by filing racketeering and

fraud action against chiropractor for his alleged conduct in charging corporation

higher fees than he charged general public, court erred in dismissing complaint

for failure to state claim, where chiropractor alleged that public corporation and

attorney general had knowledge of chiropractor's economic and contractual

relations with his patients, and that they had intended to interfere with those

relations, and where mere fact that there was ongoing racketeering and fraud

action was not basis for dismissal. Glubka v. Long (1992) 115 Or App 236, 837

P2d 553.



§ 20. Pleadings—Answer

The defense counsel should draft his answer so as to either admit or deny every

allegation of the complaint. In a federal district court or in a jurisdiction with rules

patterned after the Federal Rules of Civil Procedure, if the defendant lacks information

sufficient to admit or deny any particular allegation, the answer should so state and the

allegation will then be taken as denied. The element of the defendant's knowledge of

the plaintiff's contract with the performer should almost always be placed in issue by a

denial.(FN2)



The only part of the answer that is peculiar to interference with contract litigation is the

pleading of the defendant's affirmative defenses. Justification, it must be kept in mind, is

the affirmative defense most commonly pleaded in an interference action.(FN3)

A defendant who has wrongfully interfered with a contract, as by inducing its breach by

the person with whom the plaintiff had contracted, cannot successfully allege as a

defense that the plaintiff, in an action against the interferer for wrongful interference, has

not been damaged simply because he also has a cause of action against the other party

to the contract. This rule rests on the basic principle that one wrong is not cancelled out

merely by the coexistence of another wrong. Also, since one wrongdoer—here, by the

person with whom the plaintiff contracted—may be impecunious, the plaintiff should not

be deprived of his right to sue the other wrongdoer for damages.(FN4)



The following checklist sets forth the allegations that should be considered in the

answer to a complaint alleging the wrongful inducing of a breach of contract:



 A denial that a valid contract existed between the plaintiff and the performer in

question.

 A denial that a breach of contract occurred.

 A denial that the defendant or defendants had any knowledge of the existence of

the plaintiff's contract or intended to induce its breach.

 A denial that the defendant or defendants induced any breach resulting in actual

injury to the plaintiff.

 A denial that any injury sustained by the plaintiff was proximately caused by the

defendant's or defendants' wrongful conduct.

 Justification of the conduct of the defendant or defendants.

 Other affirmative defenses.

 If the complaint seeks exemplary damages, the answer should deny that any

breach induced by the defendant or defendants was the result of malice,

oppression, or fraud.



V. Settlement Negotiations



§ 21. In general

As noted before,(FN5) in a contract interference action temporary injunctive relief may

be sought by the plaintiff, either before the institution of the action or at that time, to

prevent the defendant from enjoying the fruits of his alleged interference. For example,

in the hypothetical fact situation noted earlier in this article,(FN6) the plaintiff might well

seek a temporary injunction against the manufacture and distribution of the phonograph

records that reproduce the songs sung by the plaintiff's contract artist in the motion

picture made by the artist for another defendant in the suit, namely, the motion picture

company. Should such an injunction be granted to the plaintiff, each day during which

the injunction is in effect would represent a serious economic loss to the defendant. It is

readily apparent, therefore, that if the defendant should be enjoined from selling or

distributing a highly saleable item, such as a popular phonograph recording, the

financial losses to the defendant might effectively persuade him to settle the case

without delay.(FN7) Indeed this probably accounts for the scarcity of reported cases on

the subject of intentional interference with exclusive talent agreements. In the above-

mentioned hypothetical case, the possibility of litigation and the disruption of promotion

of the sound track recordings, which were expected to assist the promotion of the

motion picture, may well prompt the defendant motion picture company to settle the

dispute quickly. In fact the defendant motion picture company may even advise his

attorneys to offer the plaintiff all royalties received from the sound track recordings.



However, in some situations, such settlement efforts will be unsuccessful. Royalties, for

example, will be unacceptable to the plaintiff if he desires a fixed sum, not wishing to

speculate on the quality of the records or on the success of another party's

merchandising efforts. Other reasons for failure of the settlement negotiations may

include the view of the defendant motion picture company and the defendant records

manufacturer that the payment of a substantial fixed sum to the plaintiff would be

equivalent to an admission of wrongdoing. In such a case, the only proper course for

them to take, in their opinion, would be to let the action be instituted against them and

be tried in court. Nevertheless, the duration of the litigation is not always foreseeable

and each side might be influenced to settle by the relatively large expense of the trial.

Still, one advantage to the plaintiff of taking matters to trial is that future interference

with similar exclusive talent contracts might be discouraged.



VI. Preparation for Trial



§ 22. In general; use of discovery procedures

Appropriate use of standard discovery procedures will considerably reduce the length of

the trial and should result in greater precision in responses of witnesses examined at

the trial. No special discovery techniques are required in a contract interference action;

instead, the techniques employed are generally similar to those used in other civil

actions.(FN8)



Wherever possible, counsel for both the plaintiff and the defendant should take the

depositions of the adverse party or parties.(FN9) This examination should produce

useful and necessary information, such as admissions of fact(FN10) or identification of

exhibits. The responses of the defendant or defendants may well reveal, among other

things, whether the proper party or parties are joined in the action.



Discovery interrogatories are usually much less effective than oral depositions, owing to

the difficulty of framing interrogatory questions that will bring out completely all that the

witness knows. They are also less effective because they allow opposing counsel ample

opportunity to frame answers for his client.(FN11) However, their cost is much less.

Furthermore, they are highly effective for certain limited purposes, such as compelling

the adverse party to reveal specific facts from his records.(FN12)



In a contract interference action, both the plaintiff and the defendant will ordinarily seek

production of documents. The chief use of this discovery tool will be to discover the

various contractual agreements involved in the case. These agreements will ordinarily

consist of the contract or contracts between the plaintiff and the person involved in a

contractual relationship with the plaintiff (i. e., the contractual relationship interfered

with), and the contract or contracts between that person and the defendant-

interferer.(FN13)

However, documents other than the contractual agreements involved in the case will

often be the target of a motion for production and inspection. Since a key element in an

interference case is proof that the defendant or defendants had knowledge of the

plaintiff's contract that was interfered with, counsel for the plaintiff must acquire

evidence tending to prove such knowledge. In the illustrative hypothetical fact situation

assumed earlier in this article,(FN14) evidence of this character may consist of such

documents as various trade publications stating or indicating that the artist involved in

the suit was under an exclusive contract to render services for the plaintiff. Other types

of publications or literature, too, may have some bearing on the matter of proving the

defendant's knowledge of the plaintiff's contract. These latter documents might include

advertising material and news releases concerning recordings made by her for the

plaintiff. Admittedly, the mere publication and distribution of these materials is not

sufficient to establish that the defendant or defendants had direct knowledge of the

plaintiff's exclusive contract with the artist. However, such materials, when introduced in

evidence, will greatly assist plaintiff's counsel in establishing that the defendant or

defendants did have knowledge, or reasonably should have had knowledge, of the

plaintiff's contract.(FN15)



§ 23. Preparation of witnesses—By plaintiff

Ordinarily the preparation of witnesses for the trial of a contract interference action will

not differ materially from the preparation of witnesses for the trial of other civil

actions.(FN16) This preparation, of course, is not done to coach the witnesses; rather it

is to review thoroughly the matters concerning which the witnesses will in all probability

be required to testify. As a result of this review, possible inconsistency and discrepancy

in the testimony of the witnesses can be identified and eliminated in advance. The most

important result, however, will undoubtedly be the clarification in the witness' mind of

what he is to say on the stand and why his testimony is important or relevant. To this

end, counsel should, if the scope of the defendant's cross-examination can reasonably

be anticipated, prepare the witnesses by giving them an intensive, trial-run cross-

examination as a preview of what may come at the trial.



As a part of their preparation, the witnesses should generally be informed that they may,

in certain circumstances, be allowed to refresh their memory when testifying by referring

to a contract or other document. The procedure by which a witness is allowed to refresh

his memory at the trial should be explained to the witnesses by counsel.(FN17)



At the trial, expert witnesses may prove useful in a contract interference action in certain

circumstances.(FN18) For example, in the illustrative hypothetical case outlined earlier

in this article,(FN19) it may be necessary for counsel to call an expert on record industry

practices to testify. And if the plaintiff's counsel knows or suspects that the defendant is

going to present expert testimony on certain issues, it will often be advantageous, or

even mandatory, for counsel to counteract this testimony by presenting the testimony of

his own experts.(FN20)



§ 24. Preparation of witnesses—By defendant

The defense attorneys should insure that all witnesses necessary to the full

presentation of the defense are located, interviewed, and carefully prepared for the trial.

In particular, they should locate and carefully prepare all witnesses whose testimony will

tend to negate any intent on the part of the defendant to deliberately interfere, with

harmful results, with the plaintiff's contract rights.(FN1) In the hypothetical case

developed in this discussion,(FN2) for example, the attorney for the defendant motion

picture company would conduct a careful interview with the composer of the songs sung

by the plaintiff's contract artist in the film produced by the motion picture company

because the composer was active in seeking placement of the musical sound track with

a record company. Counsel's interview and preparation of this witness is necessary

because plaintiff's case for wrongful interference depends on proving the allegations

that the reproduction, on phonograph records for commercial distribution and sale, of

the songs from the film's sound track constituted a wrongful interference with the

plaintiff's exclusive contract rights to the professional services of the singer.



The interview with the composer might develop, in part, the following vital information:



Q. Did you know that (plaintiff's contract artist) had an exclusive agreement to

record only for the (Name) Records Company (plaintiff)?



A. No. As a matter of fact, her songs are recorded on many record labels. She is

very popular.

Q. Did you ever ask anyone whether her contract with the plaintiff was exclusive?



A. Not exactly. What I did was this: I offered the film's sound-track recordings to the

(Name) Records Company (plaintiff), but we couldn't get together on terms. They

wanted a part of my copyrights, and I said no. But they never told me that I

couldn't go somewhere else and offer the sound-track recordings to another

record company.



Q. Did you specifically alert the (Name) Productions (defendant motion picture

company) of the possibility that (plaintiff's contract artist) might be signed

exclusively with the ____________ Records Company (plaintiff)?



A. No, because I didn't know that to be the case. The (Name) Records Company

(plaintiff) knew what we were attempting to do, anyway. If they didn't consider it

proper because of their contract rights with (plaintiff's contract artist), all they had

to do was say so. They seemed happy to be able to benefit from the promotion of

(plaintiff's contract artist) through the distribution of the film and the sound-track

album of the songs sung in the film by (plaintiff's contract artist).



In the hypothetical cause of action mentioned above, if any co-defendant-licensee (i. e.,

any codefendant who received a license to reproduce the sound-track recordings from

the film made by the defendant motion picture company) has entered into an

indemnification agreement with the codefendant licensor, it may develop that such

licensee does not feel compelled to defend the action as vigorously as it might do in

other circumstances. In this situation, the licensor's attorney should prepare, or at the

least participate in the preparation of the licensee as a witness at the trial. Indeed, as a

general rule, it may be wise for the attorneys of each codefendant to participate in the

preparation of the other codefendant so as to provide cohesion to the defense testimony

by clarifying for each codefendant not only his own role at the trial, but also the import of

the entire defense effort.



VII. Trial



§ 25. Opening statement—Plaintiff

Since the opening statement in a contract interference case will be the first chance of

the plaintiff's attorney to inform the jury of the issues in the case and the plaintiff's views

thereon, the opening statement should be well planned in advance. Basically, it should

consist of an outline of the plaintiff's claim that covers the issues as to which proof will

be offered. However, a well-planned opening statement will go much further; it will also

review the background of the plaintiff's claim of interference, so as to render the minds

of the jurors more receptive to the evidence that will be later presented to support the

claim.(FN3)



Since the issues in an interference case are usually few in number, and since they are

also readily understood by the average juror, there seldom is any excuse for the

opening statement being otherwise than brief, clear, and direct. To this end, counsel

should present the facts in his opening statement in chronological order. Indeed, he

should remember that chronological order is always an invaluable aid to clarity when

communicating to the jury.



In the hypothetical case discussed in § 2, the opening statement of the plaintiff's

attorney might well be as follows:



The plaintiff sues in an equitable cause of action to enjoin the defendants from further

releasing and exploiting a record produced by one of the defendants, the (Name)

Record Company, which record has been widely distributed to the trade and sold to the

public. This record contains the performance of a famous star, the popular singer

(Name).



The defendants (president of motion picture production company) and (Name) Motion

Picture Production Corporation were the producers of a motion picture entitled (Name),

for which they procured the services of the singer, (Name), for scenes in which she

sang two or three songs. Her performance was pursuant to a contract permitting the

(Name) Motion Picture Production Corporation to use her talents in the motion picture

produced.



However, at all times relevant in this case the plaintiff, a company that produces and

distributes phonograph records, had an exclusive contract with (the performer) for the

rendition of her services in the production of phonograph records. This contract covered

her performances over a period of three years. The contract was written and was well

known to the trade because of widespread publicity. It was also well known to the trade

because of trade practices favoring the securing of exclusive talent contracts with such

performers. Furthermore, and most important of all, this contract was well known to the

defendants.



The plaintiff's cause of action is based on both unfair competition and also interference

with the contract right of the plaintiff to exploit exclusively Miss (Name)'s talents in the

phonograph record field. We seek here an injunction, a permanent injunction, against

further repetition of the wrongful acts already committed against the plaintiff's interests.

We also seek damages for the injuries that the plaintiff has already sustained by virtue

of the defendants' acts in reproducing from the sound track of the film (Name) produced

by the defendant (Name) Motion Picture Producing Company, recordings of the songs

that the plaintiff's performer sang in the film and in distributing and selling to the public

at large, for commercial gain, phonograph records of these songs. This, ladies and

gentlemen, is the substance of the cause of action that is set forth in our complaint and

which we intend to prove.



§ 26. Opening statement—Defendant

In the hypothetical case described in this article,(FN4) the opening statement of the

defendants should refer to the key matters, or make the key points, that are listed in the

following checklist:(FN5)



 The essential elements of an action for tortious interference with a contractual

relationship.

 That the proof will show that the plaintiff did not possess the contractual rights

allegedly invaded.

 That the proof will show in any event that the defendants lacked any knowledge

of such rights of the plaintiff.

 The unconscionableness of the agreement asserted by plaintiff (delineating the

agreement's grossly unfair provisions) and its unenforceability in equity.

 The unsupportability of the plaintiff's claim of unfair competition.



§ 27. Presentation of the plaintiff's case

For the plaintiff to succeed in an action to recover damages for contract interference by

a third person, the plaintiff must prove his contract as alleged, the acts of wrongful

interference therewith by the defendant or defendants, the requisite intent by the

defendant or defendants to interfere, and the loss of benefits under the contract as a

result of such interference.(FN6) Therefore, in the illustrative case described in § 2, the

plaintiff's counsel should show, on the issue of the defendants' knowledge, that it is

common practice for a recording company to ask an outstanding artist, such as a

popular singer, whether she is already under an exclusive contract with another

company.



On the issue of damages, the plaintiff's counsel should show that if a company, such as

the plaintiff, has a star of high caliber under an exclusive contract, it has an exceedingly

valuable property right.(FN7) Counsel should also stress the profits that the plaintiff has

made on the singer's records in the past and point out most emphatically that because

of the defendants' wrongful activities in reproducing the song recordings from the film's

sound track, the plaintiff will be unable to have the singer record these songs for the

plaintiff, at least in the immediate future.(FN8) To make this aspect of the problem of

damages absolutely clear, it may be necessary for counsel to secure the issuance of a

subpoena duces tecum to the defendant or defendants, so as to compel him (or them)

to produce all pertinent business records relating to the distribution and sale of the

phonograph records complained of.(FN9) And if the facts of the case reveal an

aggravated, unjustified interference with the plaintiff's contract rights to the singer's

services, in reckless disregard of the plaintiff's rights, these facts should be utilized by

counsel as the basis for seeking an award of punitive or exemplary damages.(FN10)



Cases:



 In action by quick-lubrication franchisor against oil supplier, franchisor produced

sufficient evidence to satisfy elements of claim for intentional interference with

present and prospective economic advantage and to support jury award in

franchisor's favor where franchisees testified that supplier's district sales

manager attempted to induce them to terminate their relationship with franchisor

and open as independent operators by, for example, offering them same oil at

cheaper prices and telling them that they were being "ripped off" by franchisor,

where there was ample evidence from which jury could infer that oil supplier's

employees acted with improper purpose rather than in legitimately competitive

manner, and where oil supplier's conduct proximately caused franchisor to

sustain damages in that there was decrease in sales contracts for new

franchises, royalty payments almost stopped completely, which "ruined"

franchisor's cash flow and made it "almost impossible" for franchisor to sell new

franchises, and lawsuits were filed by franchisees against franchisor after sales

manager's comments to franchisees. Franchisor established oil supplier's tortious

interference by showing that supplier's district manager visited three franchisees,

suggested that all three become independent operations, told two franchisees

that they could have equipment repossessed if they did not use supplier's oil, and

raised doubts about franchisor's credibility. Lightning Lube, Inc. v. Witco Corp.

(1992, DC NJ) 802 F Supp 1180, 36 Fed Rules Evid Serv 845, costs/fees

proceeding (DC NJ) 144 FRD 662 (applying NJ law).



 Plaintiff, manufacturer of tornado dampers, stated actionable claim against sales

agents for intentionally interfering with prospective contractual relationship

between plaintiff and construction engineer where plaintiff asserted that

defendants gave pricing information and specifications developed by plaintiff to

plaintiff's competitor who eventually procured contract with construction engineer;

further, dissemination of such confidential information by defendants would

constitute such wrongful act as to bar them from asserting competitive privilege.

Techno Corp. v. Dahl Associates, Inc. (1982, WD Pa) 535 F Supp 303.



 Evidence that lessor's assignee told lessor that there was "more than one way to

skin a cat" when lessor refused assignee's offers in regard to relocation of

lessee's business, together with testimony that assignee stated that lessee's

business was not appropriate for proposed shopping center, and further evidence

bearing on malice that assignee brought forcible entry and detainer suit against

lessee during time assignee was attempting to persuade lessee to relocate

business, was at least barely enough to submit to jury count charging tortious

interference with business relationship. Curt Bullock Builders, Inc. v. H.S.S. Dev.,

Inc. (1992, 4th Dist) 225 Ill App 3d 9, 167 Ill Dec 12, 586 NE2d 1284.



 In action by plaintiff who owned franchise allowing him to deliver snack products

to grocery stores in his geographical area, against owner of 2 grocery stores who

accused him of stealing and excluded him from its stores unless he paid $7,000

to it for its losses, prima facie case for claim of tortious interference with contract

was established by proof at trial that (1) defendant was cognizant of plaintiff's

contractual relationship with franchisor, (2) defendant continued to request

service from franchisor after plaintiff was excluded from its stores, thus

preventing plaintiff from performing requirement of his contract with franchisor to

maintain service to all outlets in his sales area that requested service, and (3)

$7,000 demanded by defendant greatly exceeded what plaintiff owed to it, thus

satisfying requirement of malice. Stiso v. Inserra Supermarkets, Inc. (1992, 3d

Dept) 179 App Div 2d 878, 578 NYS2d 680, app den 80 NY2d 757, 588 NYS2d

825, 602 NE2d 233.



 Preponderance of evidence did not support finding that owners of competing nail

salon induced or entered into conspiracy to induce breach of non-competition

agreement between original nail salon and nail technicians, where no evidence

was offered that competing salon owners intended that nail technicians breach

contract, that they in any way acted maliciously, or that actions caused the

breach, and evidence indicated that nail technicians contacted competing salon

about available space, and no evidence that during prior social contacts ever

involved discussions concerned renting space at competing salon existed, nor

was there any evidence that competing salon owners were aware of

circumstances of termination at original salon. T.C.A. § 47-50-109. Baker v.

Hooper, 50 S.W.3d 463 (Tenn. Ct. App. 2001), appeal denied, (July 2, 2001);

West's Key Number Digest, Conspiracy 19.



§ 28. Cross-examination of plaintiff and his witnesses

In a contract interference case, the defense attorney should effectively cross-examine

both the plaintiff and his witnesses. For example, in the hypothetical case described in §

2, if the plaintiff's attorney has sought through his witnesses to establish knowledge of

the plaintiff's contract by the defendant or the defendants, the defense counsel should

then cross-examine these witnesses to establish that the singer in question was not

identified by the record industry or the public as being the exclusive contract property of

the plaintiff. Such cross-examination may reveal that the singer had previously recorded

for many other companies besides the plaintiff and that her records for these other

companies were still selling well on the market.(FN11) The defendant's cross-

examination of the plaintiff on this point might well be as follows:



Q. Under how many record labels may one purchase songs sung by (the artist)?



A. About ten or fifteen.



Q. Do the albums that you have released of her songs indicate the date on which

she recorded those albums or records?



A. No.



Q. Would the date of recording of her records issued by other companies appear on

such records?



A. No.



Q. After (date), when your contract with her became effective, were any records of

her songs released under the label of any record company other than your own?



A. Yes.



Q. During this same period of time, could one go into any record store and buy

albums, bearing labels other than your own, that featured her songs?



A. Yes.



Q. And is this also not correct: That today, at this very moment, I could go into any

record shop in this city and be shown perhaps as many as ten or fifteen different

recordings, bearing ten or fifteen different labels, by this singer?



A. Yes.



After defense counsel has thus created doubts that the singer in the case was thought

by the record industry and the public to be the exclusive contract property of the plaintiff

during the period of time in issue, counsel should then minimize the significance to the

case of the plaintiff's trade advertising and new releases about its own records. This is

important because the plaintiff's counsel will have sought to impute knowledge of such

literature to the defendants, in an effort to prove that the defendant or defendants were

aware of the plaintiff's contract rights and had knowingly interfered therewith. Counsel's

cross-examination of the plaintiff or his witnesses on this point might proceed as follows:



Q. How many single record releases, in the entire record industry, are there in any

one year?



A. I don't know.

Q. If I told you that (Name) (a trade paper) lists approximately 200 single releases

per week, would you be surprised?



A. No.



Q. How many record albums do you think are produced in a year?



A. I don't know.



Q. If I told you that (Name) (above mentioned trade paper) lists between fifty and

one hundred album releases every week, would you think that this is farfetched?



A. No.



Introduction of trade journals and papers: At this point, counsel can seek to

introduce into evidence copies of the trade journals referred to.



To establish the plaintiff's laches or any acts that may constitute an estoppel to sue, the

defense attorneys might effectively cross-examine the plaintiff or its witnesses as

follows:



Q. When did you first learn of the motion picture that (the plaintiff's contract artist)

appeared in for the (Name) Motion Picture Company (a codefendant)?



A. After the film's production had started.



Q. When was this?



A. About ____________(date).



Q. Did you immediately send a formal request to (Name) the Motion Picture

Company requesting it to cease and desist from using your singer's services in

this film?



A. No.



If the plaintiff seeks an excessively large sum as damages for lost profits allegedly

caused by the defendants' interference activities, the defense attorneys must then

carefully cross-examine the plaintiff and its witnesses about profits customarily made in

the past by the plaintiff on the singer's records. This part of the defendants' cross-

examination cannot be stressed too much. Even if the verdict should go against the

defendants, or any of them, the cross-examination on this particular point may reduce

by a considerable sum the damages awarded to the plaintiff.



§ 29. Presentation of the defendant's case

After having commenced his defense with the cross-examination of the plaintiff and the

plaintiff's witnesses,(FN12) the defendant will then have an opportunity, on presenting

his direct case, to introduce defensive evidence by his own witnesses.(FN13)



In the usual contract interference action the defense attorney, when presenting his

direct case, will first attempt to establish a lack of any knowledge on the part of the

defendant concerning the plaintiff's alleged contract rights. For example, in the

hypothetical case being used to illustrate this discussion,(FN14) in addition to a

straightforward denial by the defendants of any knowledge of the plaintiff's contract, the

defense attorneys would normally introduce in evidence all record albums of the singer

to whose total output the plaintiff claims exclusive contract rights, that were being

promoted, distributed to dealers, or made available to the public generally in record

shops at the time the defendants produced and distributed the album complained about

by the plaintiff.(FN15) This evidence will tend to disprove the plaintiff's claim that it had

the singer under a commonly known exclusive contract. Moreover, to drive home this

point even more forcibly to the jury, the defense attorneys would also introduce in

evidence advertisements in nationally circulated magazines and periodicals to show that

at the time the defendants produced the album complained of, other albums, not made

by the plaintiff but featuring its singer, were then available for sale all over the

country.(FN16)



The second major affirmative defense that the defendants might have to establish in the

above illustrative case is justification for the alleged interference with the plaintiff's

rights.(FN17) This justification, which will of course have been pleaded in the answer to

the complaint,(FN18) must be established by proof that will ordinarily have to be made

by the defendants and their witnesses, since such proof will usually not be apparent

from the plaintiff's evidence.(FN19)



Lastly, as a precautionary measure in the event that their affirmative defenses are

unavailing, the defendants in the above illustrative case should present evidence to

show that any profits made from the sale of the records complained of by the plaintiff

were actually much less than the sums alleged by the plaintiff.(FN20)



Cases:



 First Amendment freedom of speech clause is no bar to liability under general

common law prohibition of tortious interference with contract since common law

cause of action is directed against conduct, not speech. Jews for Jesus, Inc. v.

Jewish Community Relations Council, Inc. (1992, CA2 NY) 968 F2d 286.



 In action by developer of proposed shopping center against prospective anchor

tenant and its real estate subsidiary, and against competing developer, alleging

tortious interference with joint venture contract between developer and

prospective anchor tenant, arising out of loss of anchor tenant to defendant

competitor, financial interest privilege applied to developer's tortious interference

claims against prospective anchor tenant and its real estate subsidiary, where

anchor tenant created and controlled operations of its subsidiary and any profits

made by subsidiary accrued to benefit of parent company; however, trial court

should not have taken issue of alleged tortious interference of defendant

competitor from jury and dismissed claim, where record indicated plaintiff

adduced sufficient evidence to permit jury to reasonably find competitor acted

only to harm plaintiff, rather than with privilege resulting from legitimate business

considerations. Deauville Corp. v. Federated Dept. Stores, Inc. (1985, CA5 Tex)

756 F2d 1183, 1985-1 CCH Trade Cases ¶66537 (applying Tex law).



 Oil company did not tortiously interfere with prospective economic advantage of

service station owner by refusing assignment to him of second franchise where

oil company had requisite financial interest in assigning franchise only to those

who would buy oil company's gasoline and products such as tires, batteries and

automotive accessories and where record did not contain evidence from which

reasonable person could infer that oil company's sole or predominant motive in

disapproving assignment was to punish plaintiff or to induce him to purchase

larger quantities of oil company's products. Hamro v. Shell Oil Co. (1982, CA9

Cal) 674 F2d 784, 1982-1 CCH Trade Cases ¶64717.



 In action against employer and its health insurer alleging tortious interference

with prospective contractual relations, state unfair insurance practices act

granted immunity to defendants which had notified certain employees that they

would no longer pay for counseling services performed by plaintiff psychologist

unless rendered under direction of a psychiatrist or through an approved facility.

De Moss v. Metropolitan Life Ins. Co. (1984, WD Pa) 586 F Supp 1571, affd

without op (CA3 Pa) 760 F2d 256 and affd without op (CA3 Pa) 760 F2d 256 and

affd without op (CA3 Pa) 760 F2d 256 (applying Pa law), affd without op 760 F2d

256.



 Reasonable reliance on legal advice is one of several factors which can bear on

the "justification" defense in cases alleging interference with contract or

prospective economic advantage. Moreover, where sufficient evidence supports

the several elements of "reasonable reliance on legal advice," the trial court must

instruct the jury as to those elements and also instruct it that if it finds these

elements to exist, the reliance may constitute justification for interfering with a

contract or prospective economic advantage. Such separate instructions are

required even if the trial court also gives a general instruction on the justification

defense, at least where the advice was reasonable and, if honestly given and

understood, would have led the defendant to believe that no contractual

obligation existed with which to interfere. Greenwood & Co. Real Estate v. C-D

Investment Co. (1993, 2nd Dist) 12 Cal App 4th 1459, 93 CDOS 873, 93 Daily

Journal DAR 1786, mod, reh den (Cal App 2nd Dist) 93 Daily Journal DAR 2759.

Calif. Civ. Code, § 47, subd. (b) (absolute privilege for publications made in

course of judicial proceedings), did not bar a mobilehome park owner's complaint

against a law partnership and its agent for unfair competition, and for intentional

interference with contractual relations, lawful business, and prospective

economic advantage, in which plaintiff alleged that defendants, using threats and

falsehoods, illegally solicited the representation of park residents and exhorted

them to bring an action arising from the alleged defective condition of the park.

Although the actual solicitation involved communication and arose from the same

general facts as the exhortation to sue, it was not a privileged communication,

any more than an attorney's illegal, extortionate demand against a client, during

litigation involving facts on which the demand was based, would be privileged.

Moreover, the alleged torts did not involve malicious prosecution so as to require

plaintiff to plead that the residents' suit against him had terminated in his favor.

Rather, the basis of the complaint was illegal client solicitation, which was a

violation of Bus. & Prof. Code, § 17204 (unlawful business practices). Rubin v.

Green (1992, 4th Dist) 9 Cal App 4th 986.



 Economic loss rule: Tenant to commercial lease could maintain tort claim

against landlords for emotional distress, based on landlords having unreasonably

withheld consent to an assignment, where tenant asserted personal injury

damages and not solely economic losses. But tenant's tort claims for interference

were barred by the economic loss rule, where source of landlord's duty was the

contract. Parr v. Triple L & J Corp., 107 P.3d 1104 (Colo. Ct. App. 2004); West's

Key Number Digest, Torts 12.



 Vendor and purchaser of cooperative apartment did not have right of action for

tortious interference with contract rights against owners of cooperative apartment

building for imposing restraints on right to alienate particular cooperative

apartment, where right of alienation was expressly subject to approval of

directors or shareholders of owners as provided in lease of corporate bylaws and

where owners exercise of such right was not unreasonable. Jones v. O'Connell

(1983) 189 Conn 648, 458 A2d 355.



 Sending regular advertising and soliciting business in the normal course does not

constitute inducement of breach of contract. White Plains Coat & Apron Co., Inc.

v. Cintas Corp., 8 N.Y.3d 422, 835 N.Y.S.2d 530, 867 N.E.2d 381 (2007); West's

Key Number Digest, Torts 242.



 Economic interest defense: In response to a contract interference claim, a

defendant may raise the "economic interest defense," that it acted to protect its

own legal or financial stake in the breaching party's business. White Plains Coat

& Apron Co., Inc. v. Cintas Corp., 8 N.Y.3d 422, 835 N.Y.S.2d 530, 867 N.E.2d

381 (2007); West's Key Number Digest, Torts 220.



 In action for tortious interference with contract, defendant was not entitled to

summary judgment on basis of provision in contract between it and third party

whereby third party warranted that its agreement with defendant did not infringe

on right of any other party since (1) defendant was aware that third party had

exclusive arrangement with plaintiff, and (2) questions of fact existed as to

whether defendant relied on warranty and whether defendant improperly induced

third party to breach its arrangement with plaintiff. Petry Television, Inc. v.

National Broadcasting Co. (1990, 1st Dept) 168 App Div 2d 215, 562 NYS2d

102.



 In action brought against decedent's estate for tortious interference with author's

contract with publishing company for publication of decedent's biography, arising

from decision by publishing company not to publish biography after threat of

lawsuit by estate, estate was not entitled to summary judgment on ground that

contract was terminable at will merely because of clause permitting publisher to

terminate contract with author if satisfactory manuscript was not delivered;

moreover, even if contract were terminable at will, summary judgment was

properly denied as there was question of fact as to whether estate's threat of

litigation was based on good faith and probable cause. Coan v. Estate of Chapin

(1989, 1st Dept) 156 AD2d 318, 549 NYS2d 16.



 Summary judgment was proper in an action for tortious interference with a

business or professional relationship where the action was brought by a former

employee of a mental health facility against the executive director of the facility

after the employee was terminated because his migraine headaches and

depression were interfering with his work; the executive director had a duty to

evaluate staff and protect the corporation from any foreseeable legal liability; thus

the executive director owed a duty of advice and action to the facility to advocate

for the employee's dismissal if he thought it in the corporation's best interest.

Contadino v. Tilow (1990, Hamilton Co) 68 Ohio App 3d 463, 589 NE2d 48.



§ 30. Final arguments

In a contract interference case, the final arguments, or summations, of the attorneys for

both the plaintiff and the defendant will provide counsel with their best opportunity to

demonstrate to the jury the respective factual foundations on which the plaintiff's claims

and the defendant's defenses are based. In other words, the final argument is one of

counsel's most effective weapons for repudiating and overcoming the claims and

theories of his opponent.(FN1)



Although the final arguments should develop the theories of the plaintiff's claims and the

defendant's defenses in light of the evidence introduced in the case, the arguments

should nevertheless be limited to only those issues that are controlling. For example, if

a major dispute in the case concerns the presence or absence of any intent by the

defendant to interfere with the plaintiff's contract rights, the defense attorney should

most certainly stress in his final argument the defendant's lack of all knowledge about

the existence of the plaintiff's contract. The plaintiff's attorney, on the other hand, should

similarly emphasize in his final argument the fact that the evidence presented in the

case clearly shows that the defendant was well aware that his activities constituted a

wrongful and injurious interference with the plaintiff's rights.



§ 31. Instructions to the jury

Depending on local practice, the trial court's instructions to the jury will either be given

before or after the final arguments in the case.(FN2)

Since the court's instructions will generally carry great weight with the jury, the plaintiff's

attorney, when submitting requested instructions on the issue of damages, should go to

great pains to insure that his submitted instructions correctly state the law concerning

the computation of all damages involved in the case.(FN3) For example, in a contract

interference case the plaintiff will often be entitled under the law of the jurisdiction to

interest on the total amount of damages recovered. This interest, furthermore, will

commence as of the date on which the plaintiff's cause of action accrued.(FN4)



Cases:



 In an action brought by an unsuccessful applicant for various managerial

positions in Savings and Loan Associations against state savings and loan

commissioner, the trial court erred in removing the question from the jury's

consideration of whether the commissioner had interferred with the plaintiff's

prospective contractual relations with several savings and loans, by withholding

his recommendation that the plaintiff be employed by them, which effectively

excluded the plaintiff from the savings and loans industry due to the industry

custom, where the record contained sufficient evidence from which the jury could

have concluded that there was reasonable probability that the plaintiff would

have entered into contract with the savings and loan absent the commissioner's

malicious act of intentionally preventing the relationship from occurring with the

purpose of harming the plaintiff, in that the recommendation had been withheld

based on the plaintiff's involvement with savings and loan in which officers had

engaged in several financial irregularities, despite the fact that the commissioner

suspected the plaintiff of no wrongdoing, in that the commissioner's actions were

neither privileged nor justified, and in that the plaintiff suffered harm or damage

as the result of such acts. Phillips v. Vandygriff (1983, CA5 Tex) 711 F2d 1217,

1983-2 CCH Trade Cases ¶65546, later App (CA5 Tex) 724 F2d 490 (applying

Texas law).





Footnotes:



(FN1) Tort liability for wrongful interference with contract, see 45 Am. Jur. 2d,

Interference §§ 1 et seq.



(FN2) Prosser and Keeton on the Law of Torts (3d ed.) p 950 § 123.



(FN3) Lumley v. Gye (1853) 2 E & B 216, 118 Eng Rep 749.



(FN4) Basic principles of tort liability for interference with contract, see 45 Am. Jur. 2d,

Interference § 1.



(FN5) Generally, see 45 Am. Jur. 2d, Interference § 46.

(FN6) For detailed discussion of the parties defendant, see § 18.



(FN7) As to unfair competition litigation generally, see Trademark Infringement and

Unfair Competition Litigation, 8 Am. Jur. Trials 359; Actions for Unfair Competition—

Trade Secrets, 14 Am. Jur. Trials 1.



(FN8) As to copyright infringement actions, see Copyright Infringement Litigation, 9 Am.

Jur. Trials 293.

(FN9) Case investigation generally, see Investigating the Civil Case; General Principles,

1 Am. Jur. Trials 357; Investigating Particular Civil Actions, 2 Am. Jur. Trials 1.



(FN10) See Interviewing the Client, 1 Am. Jur. Trials 1.



(FN11). See § 2.



(FN12). As to the parties defendant in this hypothetical action, see also § 18.



(FN13). Interview generally, see Interviewing the Client, 1 Am. Jur. Trials 1.



(FN14). See § 15 as to this reply.



(FN15) For basic principles of tort liability for interference, see 45 Am. Jur. 2d,

Interference § 1. As to interference with employer-employee relationship, see 45 Am.

Jur. 2d, Interference §§ 45 et seq.; interference with contract relationships generally,

see 45 Am. Jur. 2d, Interference §§ 39 et seq.; interference with business relations, see

45 Am. Jur. 2d, Interference § 50



(FN16) Liability for enticing employee to quit service, see 45 Am. Jur. 2d, Interference

§§ 6, 46.



(FN17) See 45 Am. Jur. 2d, Interference §§ 7 et seq.



(FN18) See § 2.



(FN19) Canuel v. Oskoian (1960, DC RI) 184 F Supp 70.



(FN20) Royal Realty Co. v. Levin (1955) 244 Minn 288, 69 NW2d 667.



(FN1) Fairbanks, Morse & Co. v. Texas Electric Service Co. (1933, CA5 Tex) 63 F2d

702, cert den 290 US 655, 78 L Ed 567, 54 S Ct 71 (public utility contracts).



Section 8 Footnotes:

(FN2) Knowledge of existence of contract as necessary element of cause of action, see

45 Am. Jur. 2d, Interference § 11.



(FN3) See Robey v. Sun Record Co., Inc. (1957, CA5) 242 F2d 684, cert den 355 US

816, 2 L Ed 2d 33, 78 S Ct 20.



(FN4) See § 2.



Section 9 Footnotes:



(FN5) Malice as element of tort of interference with contractual relations, see 45 Am.

Jur. 2d, Interference § 3.



(FN6) Liability of one who induces or causes third person not to enter into or continue a

business relation with another, 9 A.L.R. 2d 228.



(FN7) See § 2.



Section 10 Footnotes:



(FN8) Justification for interference with contractual relationship, see 45 Am. Jur. 2d,

Interference §§ 27 et seq.



(FN9) American Surety Co. v. Schottenbauer (1958, CA8 Minn) 257 F2d 6.



(FN10) Liability for procuring breach of contract, 26 A.L.R. 2d 1227; Liability of one who

induces or causes third person not to enter into or continue a business relation with

another, 9 A.L.R. 2d 228. An attorney is not liable for tortious interference with a

contract between the plaintiff and the attorney's client if the attorney acts solely within

the scope of his professional employment. This immunity, however, may not be invoked

if the attorney, exceeding the bounds of his unique agency relationship, is either

dominated by his own personal interest or knowingly participates with his client in the

perpetration of a fraudulent or unlawful act with respect to the plaintiff. McDonald v.

Stewart (1970) ___ Minn ___, 182 NW2d 437.



Section 11 Footnotes:



(FN11) Liability for procuring breach of contract, 26 A.L.R. 2d 1227.



Liability of one who induces or causes third person not to enter into or continue a

business relation with another, 9 A.L.R. 2d 228.



Right to recover, in action for breach of contract, expenditures incurred in preparation

for performance, 17 A.L.R. 2d 1300.



Pretrial discovery of defendant's financial worth on issue of damages, 27 A.L.R. 3d

1375.



Recovery of damages generally. 22 Am. Jur. 2d, Damages §§ 1 et seq.



(FN12) Interference with performance of contract, see 45 Am. Jur. 2d, Interference § 41.



(FN13) See 45 Am. Jur. 2d, Interference § 6.



(FN14) Damages for interference with contractual relationships. Prosser and Keeton on

the Law of Torts (3d ed.) p 972 § 123.



Section 12 Footnotes:



(FN15) See § 2.



(FN16) Granting or denial of temporary injunction, see 42 Am. Jur. 2d, Injunctions § 15.



(FN17) See, for example, Imperial Ice Co. v. Rossier (1941) 18 Cal 2d 33, 112 P2d 631.



(FN18) See § 2.



(FN19) Who, under Federal Rule 65(d) and state counterparts, are persons "in active

concert or participation" with parties to actions so as to be bound by order granting an

injunction, 97 A.L.R. 2d 490.



Section 13 Footnotes:



(FN20) Generally, see 42 Am. Jur. 2d, Injunctions §§ 61–68.



(FN1) Furnishing of bond as prerequisite to issuance of temporary restraining order, 73

A.L.R. 2d 854.



Who, under Federal Rule 65(d) and state counterparts, are persons "in active concert or

participation" with parties to actions so as to be bound by order granting an injunction,

97 A.L.R. 2d 490.



(FN2) Posting of bond in connection with issuance of injunction, see 42 Am. Jur. 2d,

Injunctions §§ 310 et seq.



Section 14 Footnotes:

(FN3). See § 2.



Section 15 Footnotes:



(FN4) As to proof of admissions by conduct on failure to answer a written statement,

see Admissions, 1 Am. Jur. Proof of Facts 172.



Section 16 Footnotes:



(FN5) See 28 USC § 1338(a), providing that the federal district court shall have original

jurisdiction of any civil action arising under any Act of Congress relating to patents,

copyrights and trademarks, and that such jurisdiction shall be exclusive of the courts of

the states in patents and copyright cases.



(FN6) See 28 USC § 1441, providing for removal of cases from a state court to the

federal district court.



(FN7) See 28 USC § 2201 for provisions of Federal Declaratory Judgment Act.



(FN8) As to plaintiff's selection of the forum generally, see Selecting the Forum—

Plaintiff's Position, 3 Am. Jur. Trials 553.



(FN9) As to the defense position generally, see Selecting the Forum—Defendant's

Position, 3 Am. Jur. Trials 611.



Section 17 Footnotes:



(FN10) For factors governing choice of remedy generally, see Selecting the Remedy, 3

Am. Jur. Trials 637.



(FN11) See 42 Am. Jur. 2d, Injunctions § 305.



(FN12) Schechter v. Friedman (1948) 141 NJ Eq 318, 57 A2d 251.



Section 18 Footnotes:



(FN13) Parties to action for interference generally, see 45 Am. Jur. 2d, Interference §

53.



(FN14) Tort liability of directors, officers, and agents of corporation generally, see 19

Am. Jur. 2d, Corporations §§ 1382 et seq.

(FN15) As to plaintiff's motion for a temporary injunction against the interfering parties,

see §§ 12, 13.



Section 19 Footnotes:



(FN16) Reply of defense counsel to plaintiff's letter complaining about the interference,

see § 15.



(FN17) As to motion for preliminary injunction, see §§ 12, 13.



(FN18) As to allegations in complaint for interference, generally, see 45 Am. Jur. 2d,

interference § 55.



(FN19) See, for example, Syfert v. Solomon (1928) 95 Cal App 228, 272 P 810.



(FN20) Shumate v. Johnson Publishing Co. (1956) 139 Cal App 2d 121, 293 P2d 531.



(FN1) For basic principles governing granting or denial of injunctive relief, see 42 Am.

Jur. 2d, Injunctions §§ 23 et seq.



Section 20 Footnotes:



(FN2) Pleading tactics generally, see Tactics and Strategy of Pleading, 3 Am. Jur. Trials

681.



(FN3) For a discussion of justification as a defense, see § 10.



(FN4) Existence of cause against one party for breach of contract as defense by

another party interfering with the contract, see 45 Am. Jur. 2d, Interference § 26.



Section 21 Footnotes:



(FN5) See §§ 12, 19 as to injunctive relief.



(FN6) See § 2.



(FN7) For settlement techniques generally, see Settling the Case—Plaintiff, 4 Am. Jur.

Trials 289; Settling the Case—Defendant, 4 Am. Jur. Trials 379; Sample Settlement

Brochure, 4 Am. Jur. Trials 411.



Section 22 Footnotes:



(FN8) For discovery techniques, generally, see Discovery—Written Interrogatories, 4

Am. Jur. Trials 1; Discovery—Oral Depositions, 4 Am. Jur. Trials 119; Request for

Admissions by Plaintiff, 4 Am. Jur. Trials 185; Request for Admissions by Defendant, 4

Am. Jur. Trials 215; Motions for Production and Inspection, 4 Am. Jur. Trials 223.



(FN9) Deposition techniques generally, see Discovery—Oral Depositions, 4 Am. Jur.

Trials 119.



(FN10) Statements of parties or witnesses as subject of pretrial or other disclosure,

production, or inspection, 73 A.L.R. 2d 12.



Pretrial discovery of defendant's financial worth on issue of damages, 27 A.L.R. 3d

1375.



(FN11) As to interrogatory techniques generally, see Discovery—Written

Interrogatories, 4 Am. Jur. Trials 1.



(FN12) Compelling party to disclose information in hands of affiliated or subsidiary

corporation, or independent contractor, not made party to suit, 19 A.L.R. 3d 1134.



Propriety of answer to interrogatory merely referring to other documents or sources of

information, 96 A.L.R. 2d 598.



(FN13) As to motions for production of documents, see Motions for Production and

Inspection, 4 Am. Jur. Trials 223.



(FN14) See § 2.



(FN15) See, as to this matter, Roulette Records, Inc. v. Princess Production Corp. et al

(1962) 15 App Div 2d 335, 224 NYSd 204, affd without op (1963) 12 NY2d 815, 236

NYS2d 65.



Section 23 Footnotes:



(FN16) Preparation of witnesses generally, see Locating and Interviewing Witnesses, 2

Am. Jur. Trials 229.



(FN17) As to refreshing recollection generally, see Am. Jur., Witnesses §§ 578–608.



(FN18) Locating experts, see Locating Scientific and Technical Experts, 2 Am. Jur.

Trials 293; interviewing and preparing experts, see Selecting and Preparing Expert

Witnesses, 2 Am. Jur. Trials 585.



(FN19) See § 2.

(FN20) Pretrial deposition-discovery of opinions of opponent's expert witnesses, 86

A.L.R. 2d 138.



Section 24 Footnotes:



(FN1).

Locating and interviewing witnesses generally, see Locating and Interviewing

Witnesses, 2 Am. Jur. Trials 229.



(FN2). See § 2.



Section 25 Footnotes:



(FN3). For preparation of opening statement by plaintiff's counsel generally, see

Opening Statements—Plaintiff's View, 5 Am. Jur. Trials 285.



Section 26 Footnotes:



(FN4) See § 2.



(FN5) As to the defendant's opening statement, generally, see Opening Statements—

Defense View, 5 Am. Jur. Trials 305.



Section 27 Footnotes:



(FN6) Burden of proof in interference cases, see 45 Am. Jur. 2d, Interference § 56.



(FN7) Damages in actions for interference, generally, see 45 Am. Jur. 2d, Interference

§§ 57 et seq.



(FN8) Lost profits as element of damages, see 22 Am. Jur. 2d, Damages §§ 171 et seq.



(FN9) Form, particularity, and manner of designation required in subpoena duces tecum

for production of corporate books, records, and documents, 23 A.L.R. 2d 862.



(FN10) As to exemplary or punitive damages for interference, generally, see 45 Am.

Jur. 2d, Interference § 61.



Section 28 Footnotes:



(FN11). Cross-examination of the plaintiff and his witnesses generally, see Cross-

Examination of Plaintiff and Plaintiff's Witnesses, 6 Am. Jur. Trials 201.

Section 29 Footnotes:



(FN12) See § 28.



(FN13) Direct examination of the defendant generally, see Direct Examination of

Defendant, 6 Am. Jur. Trials 263.



(FN14) See § 2.



(FN15) Evidence in action for interference generally, see 45 Am. Jur. 2d, Interference §

56.



(FN16) Admissibility of advertisements, brochures, catalogues, and the like as

containing admissions by litigant contrary to a position taken by him, 44 A.L.R. 2d 1027.



(FN17) As to the requirement that the defendant lack any justification for the

interference, see § 10.



(FN18) See § 20.



(FN19) Burden of proof regarding justification, see 45 Am. Jur. 2d, Interference § 56. As

to what constitutes justification, see § 10.



(FN20) Liability for procuring breach of contract, 26 A.L.R. 2d 1227.



Liability of one who induces or causes third person not to enter into or continue a

business relation with another, 9 A.L.R. 2d 228.



Section 30 Footnotes:



(FN1) As to final arguments generally, see Summations for the Plaintiff, 6 Am. Jur.

Trials 641; Summations for the Defense, 6 Am. Jur. Trials 731; Nonjury Summations, 6

Am. Jur. Trials 771.



Section 31 Footnotes:



(FN2) As to instructions generally, see Instructing the Jury—Pattern Instructions, 6 Am.

Jur. Trials 923.



(FN3) As to instructions on damages generally, see 22 Am. Jur. 2d, Damages §§ 346–

362.

(FN4) As to tort claims generally that are considered to be "liquidated," so as to bear

interest, see 22 Am. Jur. 2d, Damages §§ 189–194.