FORT LAUDERDALE BUSINESS LITIGATION: TORTIOUS INTERFERENCE DEFENSES BASED ON PRIVILEGE

Tortious interference claims arise when another business or person unjustly interferes with the business or contractual relationships of another business. However, all interference is not inherently “tortious” under Florida law. For example, certain types of interference may qualify as “privileged” or “justified” when the party acts in its own financial interests and the interference does not involve physical violence, misrepresentations, intimidation, conspiratorial conduct, illegal conduct, or threats of illegal conduct. Peter Mavrick is a Fort Lauderdale business litigation attorney, and represents clients in Miami, Boca Raton, and Palm Beach. The Mavrick Law Firm represents businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment law, and other legal disputes in federal and state courts and in arbitration.

A business or person for tortious interference when the opposing party unjustifiably interfered with business or contractual relationships. “The tort of tortious interference teeters between two competing values—the desire to protect the reasonable expectations of the parties to a business relationship on the one hand, and the need to avoid excessive restrictions on freedom of competition on the other.” Jay v. Mobley, 783 So. 2d 297 (Fla. 4th DCA 2001). To succeed on a tortious interference claim, a litigant must prove:

• the existence of a business relationship under which the plaintiff has legal rights;
• knowledge of the relationship on the part of the defendant;
• an intentional and unjustified interference with that relationship by the defendant; and
• damage to the plaintiff as a result of the breach of the business relationship.

Am. Van Lines, Inc. v. Ferguson Transp., Inc.,639 So. 2d 32 (Fla. 4th DCA 1994). The alleged interference must also be “unjustified” or improper for a business to recover damages under Florida law. Such conduct includes “physical violence, misrepresentations, intimidation, conspiratorial conduct, illegal conduct, and threats of illegal conduct.” Ice Portal, Inc. v. VFM Leonardo, Inc., 2010 WL 2351463 (S.D. Fla. June 11, 2010).

However, “Florida law recognizes the principle that actions taken to safeguard or protect one’s financial interest, so long as improper means are not employed, are privileged.” Johnson Enters. v. FPL Group, Inc., 162 F.3d 1290 (11th Cir.1998). “Florida ‘recognizes competition between competitors, and if there is an interference with a non-exclusive right[,] this is a privileged interference.’” Jay v. Mobley, 783 So. 2d 297 (Fla. 4th DCA 2001). For example, a landlord or franchise that has discretion to deny approval to a subtenant or franchisee is generally free to exercise that right if it is its prerogative. Genet Co. v. Annheuser-Busch, Inc., 498 So. 2d 683 (Fla. 3d DCA 1986). This privilege extends to protect competitive activity when a competitor is acting in its own financial interest.

The privilege to act in one’s own legitimate self-interest may be invoked in claims of tortious interference, but that privilege is limited to circumstances where a no wrongful or improper means were undertaken. In Weisman v. S. Wine & Spirits of Am., Inc., Florida’s Fourth Circuit Court of Appeals analyzed how certain types of interference may qualify as privileged. Weisman v. S. Wine & Spirits of Am., Inc., 2020 WL 2463080 (Fla. 4th DCA 2020). Weisman explained that: “One who intentionally causes a third person not to enter into a prospective contractual relation with another who is his competitor . . . does not interfere improperly with the other’s relation if:

• the relation concerns a matter involved in the competition between the actor and the other;
• the actor does not employ wrongful means;
• his action does not create or continue an unlawful restraint of trade; and
• his purpose is at least in part to advance his interest in competing with the other.

Weisman held that the subject communication was privileged and did not support liability under a tortious interference claim. Weisman held that tortious interference did not apply, even though the business’ conduct may have actually interfered with plaintiff’s business relationships with its customers. Weisman further explained that it was important that the statement sent to retailers did not mention any illegal acts, prior convictions, or disparaging comments.

Peter Mavrick is a Fort Lauderdale business litigation lawyer, and represents clients in Miami, Boca Raton, and Palm Beach. This article does not serve as a substitute for legal advice tailored to a particular situation.