Competition and free enterprise are fundamental tenets of the American business model. From a very young age, American children are taught the mantra that hard work and competition make everyone better. Oftentimes, these lessons are learned through the lens of titanic business figures like Ford, Vanderbilt, and Carnegie. At some point, however, it becomes apparent that competition is only as good as the virtues of those who compete. Thus, each chapter in the story of American competition includes a struggle between proponents of pure competition for the sake of profit and those who look to the law for shelter from “unfair” or “improper” actions. One way the law has dealt with “unfair” or “improper” competition is through the creation of a cause of action for tortious interference. The law, however, is not uniform on where the line between fair play and unfair competition should be drawn.

The Restatement View

Courts in most states have accepted the Restatement (Second) of Torts’ recognition of a cause of action for “improper” interference with existing and prospective contractual relations. See Restatement (Second) of Torts §§ 766–766B. The Restatement has created a list of non-exhaustive factors that offer guidance about the meaning of the inherently vague term “improper”; certain bad acts performed in the name of competition, such as physical violence, abuse of legal process, and fraud, are virtually universally recognized as “improper” and actionable. See Restatement (Second) of Torts § 767. When these established bad acts are not present, however, there often will be a gray area between improper competition and fair competition.

The Majority View

A majority of courts that have addressed this issue have followed the Restatement and found that economic pressure typically is fair game and not improper if it is aimed directly at the parties’ competitive relationship. Recognizing that competition is woven into the fabric of American business, these courts have held that such economic pressure is only improper if the exertion of pressure itself is independently actionable (i.e., an act of violence or defamation). See, e.g., Great Escape, Inc. v. Union City Body Co., 791 F.2d 532 (7th Cir. 1986) (under Indiana law, proving that defendant acted illegally is “critical” to tortious interference claim); Assembly Tech. Inc. v. Samsung Techwin Co., 695 F. Supp. 2d 168 (E.D. Pa. 2010) (predicating tortious interference claim on independently actionable conduct strikes proper balance between encouraging healthy competition and prohibiting conduct that interferes with free market); Carvel Corp. v. Noonan, 3 N.Y.3d 182, 190, 192 (2004) (economic pressure does not rise to the level of “wrongful means” unless it is so “extreme and unfair” that it “amount[s] to a crime or an independent tort”); San Francisco Design Center Assoc. v. Portman Co., 50 Cal. Rptr. 2d 716 (Cal. Ct. App. 1995) (recognizing privilege of competition as an affirmative defense that can only be overcome if alleged conduct is independently actionable); Briner Elec. Co. v. Sachs Elec. Co., 680 S.W.2d 737 (Mo. Ct. App. 1984) (“unsporting” acts by competitor were not sufficient to prove tortious interference because they were not independently unlawful).

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