Last week I posted about the elements of tortious interference with contract. But what about tortious interference with a prospective contract. In other words, is there any legal recourse for a party who is about to sign a contract and is prevented from entering that contract by the wrongful actions of another party (usually a competitor)?
The elements for tortious interference with a business relationship are:
1. A reasonable probability that the plaintiff would have entered into a business relationship;
2. an independently tortious or unlawful act by the defendant that prevented the relationship from occurring;
3. the defendant did such act with a conscious desire to prevent the business relationship from occurring or the defendant knew the interference was certain or substantially certain to occur from the conduct;
4. the plaintiff suffered actual damages from defendant’s interference.
These are difficult hurdles to overcome. The important thing to recognize is that the second element requires proof that the act by the defendant was “independently tortious or unlawful.” This is a high standard. Merely offering a better deal or offering lawful incentives will not be viewed as independently tortious or unlawful.