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The Privilege Affirmative Defenses Against Tortious Interference Claims


Florida law recognizes claims for both tortious interference with a business relationship and tortious interference with a contractual relationship. These claims commonly arise in the business context when an outside business unjustifiably interferes with another business’ contract or business relationship with a third party. “Essentially, a claim of tortious interference with a contract and a claim of tortious interference with a business relationship are one in the same. The only practical difference is that in the former there is a contract and in the latter only a business relationship.”[1]

A claim for tortious interference with a contractual or business relationship requires the plaintiff to prove: (1) the existence of a business relationship or contract, (2) the defendant has knowledge of the business relationship or contract, (3) an intentional and unjustified interference with the relationship or contract by the defendant, and (4) damage to the plaintiff resulting from the breach of the business relationship or contract.[2] These claims “teeter[] 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.”[3] Florida law, however, recognizes two privileges in defense of a tortious interference claim: competition privilege and protection privilege.[4] These privileges act as affirmative defenses to a tortious interference claim, and the business-defendant bears the burden of proving their applicability.[5]

Competition privilege provides protection for businesses who engage in legitimate competition with competitors to acquire a third-party’s business for themselves. Specifically, “where there is no contract right to have the relation continued, but only an expectancy[,] . . . a competitor has the privilege of interference in order to acquire the business for himself.”[6] To invoke this privilege, the defendant-business must prove the following:

  1. The contract or business relationship concerns a matter involved in the competition between the defendant-business and the other business;
  2. The defendant-business did not employ wrongful means;
  3. The defendant-business’ action does not create or continue an unlawful restraint of trade; and
  4. The defendant-business’ purpose is at least in part to advance his interest in competing with the other.[7]

As used above, “wrongful means” include “physical violence, misrepresentations, including false statements or omissions of material fact, intimidation, conspiratorial conduct, illegal conduct, or threats of illegal conduct.”[8] If a business-defendant can prove all four elements above, he is privileged in his alleged “interference” with the other business’ business relationship or contract, thus immune from being held liable for his conduct.

Separately, protection privilege provides protection for businesses who interfere in another business’ contractual relationship or business relationship to protect their own financial and contractual interests.[9] To prove this privilege applies, the business-defendant only needs to show it did not employ improper means when “interfering.”[10] In the protection privilege context, “improper means” means “doing no more than insist[ing] upon existent legal rights in a permissive way.”[11] Once the business-defendant makes this showing, the burden shifts to the other business to prove the business-defendant did in fact use improper means.[12] If a business-defendant can prove the protection privilege applies, it cannot be held liable for “interfering” with the other business’ contractual relationship or business relationship.

If your business has been sued by a company alleging either tortious interference with a contractual relationship or tortious interference with a business relationship, contact the attorneys at Rabin Kammerer Johnson at (561) 659-7878.

[1] Pilkington v. United Airlines, Inc., 921 F. Supp. 740, 749 (M.D. Fla. 1996) (applying Florida law).

[2] Ethan Allen, Inc. v. Georgetown Manor, Inc., 647 So. 2d 812, 814 (Fla. 1994) (emphasis added) (quoting Tamiami Trail Tours, Inc. v. Cotton, 463 So. 2d 1126, 1127 (Fla. 1985)).

[3] Jay v. Mobley, 783 So. 2d 297, 299 (Fla. 4th DCA 2001).

[4] Weisman v. S. Wine & Spirits of Am., Inc., 297 So. 3d 646, 650-51 (Fla. 4th DCA 2020).

[5] L. Offs. of David J. Stern, P.A. v. SCOR Reinsurance Corp., 354 F. Supp. 2d 1338, 1346 (S.D. Fla. 2005).

[6] Duty Free Americas, Inc. v. Estee Lauder Companies, Inc., 797 F.3d 1248, 1280 (11th Cir. 2015) (alternations in original) (quoting Wackenhut Corp. v. Maimone, 389 So. 2d 656, 657–58 (Fla. 4th DCA 1980)).

[7] Weisman, 297 So. 3d at 651–52 (quoting Restatement (Second) of Torts § 768 (1979)).

[8] 32 Fla. Jur 2d Interference § 16.

[9] Weisman, 297 So. 3d at 652 (citing Salit v. Ruden, McClosky, Smith Schuster & Russell, P.A., 742 So. 2d 381 (Fla. 4th DCA 1999)).

[10] Id.

[11] Id. (quoting Horizons Rehab., Inc. v. Health Care & Ret. Corp., 810 So. 2d 958, 964 (Fla. 5th DCA 2002)).

[12] Id.

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