You should put it in a word document and e-mail it directly to me.Use 12 pt. font.Your submission should be no longer than five (5) pages double-spaced
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LAW 2221
2019 T3
Aassignment Appendix G: Business Torts: Tortious Interference
DFTA (2607721)
MTCA (272070)
XTIA (271919)
18 February 2019
18 February:
In the area of business torts, we have now addressed the relevance of state of mind with
specific reference to the business torts of fraud and employment discrimination. Do not forget
that, in any discussion of torts, business torts, crimes, business crimes, and contracts, you
should always be prepared to discuss state of mind and elements.
We will now move into an exploration of one of the other unfair competition torts: Tortious
Interference with Contract and/or Business Relationships. Tortious Interference is one of the
most versatile business torts available to plaintiffs’ counsel. Its applicability covers the
spectrum from employment cases to complex business litigation, to include Antitrust, theft of
trade secrets, breaches of covenants not to compete, etc. You will usually find it coupled with
one or more other business torts in any complaint filed by skilled business plaintiffs’ counsel.
Therefore, discussing any Tortious Interference case inevitably allows for a discussion of other
legal concepts such as covenants not to compete (non-compete covenants).
Given the importance of this tort, your Text does not adequately treat it. Therefore, I hope
that, at the end of our discussions, you will have an informed appreciation for the importance
of this tort.
This Assignment Appendix also contains your Third Graded Writing Assignment. Bring this
Assignment Appendix with you to class. We will discuss the legal issues, one of which you will
select for your writing submission.
Required Readings:
1. Text: Pp. 283-284.
2. Orrin K. Ames III, Tortious Interference with Business Relationships: The Changing Contours of
This Commercial Tort, 35 Cumberland Law Review 317 (2004-2005) (Westlaw citation: 35 Cumb.
L. Rev. 317).
3. Sirote, Alabama’s New Non-Compete Act (Nov. 3, 2015).1
Additional Readings That I Will Handle in Class
1. Restatement (Second) Torts §§ 766, 768 (guidance for determining “improper” conduct and the
competitor’s privilege).
2. White Sands Group, L.L.C., et al., v. Michael Asfour and Peter Sterling, 32 So.3d 5 (Ala. 2009).
3. Hope For Families & Community Service, Inc. v. Warren, et al., 721 F.Supp.2d 1079 (M.D. Ala.
2010) (You do not need to read this case. It is over 100 pages long. I will discuss it in class.).
4. Amerinet, Inc. v. Xerox Corporation, 972 F.2d 1483 (8th Cir. 1992) (business disparagement and
tortious interference claims (You do not need to read this case. I will discuss it in class.).
5. Pierce v. Hand, Arendall, Bedsole, Greaves & Johnston, 678 So.2d 765 (Ala. 1996) (You do not
have to read this case. I will handle it in class.)
Third Graded Writing Assignment
This is your Third Writing Assignment. You should put it in a word document and e-mail it directly to
me. Use 12 pt. font. Your submission should be no longer than five (5) pages double-spaced. It is worth
ten (10) points toward your final grade.
Fact Pattern
Antonio Jones became employed by Apex Alarm Company. Apex is an Alabama corporation
with its headquarters and its principle place of business in Birmingham. Mr. Jones was a
resident of Georgia. He was never a resident of Alabama. He had been to Alabama once for
training, but that was his only personal contact with Alabama.
Because Mr. Jones was employed by an Alabama company, he was an employee-at-will and he
had no true employment contract. However, he did sign a non-compete covenant and a
confidentiality agreement covering trade secrets, etc. Apex’s market included the states of
Alabama, Mississippi, Georgia, and Tennessee. Because this was an industry that was highly
competitive, the non-compete clause provided that, if Mr. Jones quit or was terminated, he
could not work in that same industry for a period of 2 years. The geographic scope of the noncompete covered all states east of the Mississippi River.
1
On Canvas.
Mr. Jones was approached by Wallace Kilgore, the CEO of Armed Protection, a competitor of
Apex headquartered in Georgia with it principal place of business in Atlanta. Mr. Kilgore
offered Mr. Jones a position, to include an employment contract, if he would quit Apex and
bring Apex’s customer list and other trade secrets2 with him.
The law firm of Alston Byrd in Atlanta serves as outside counsel for Armed Protection. Mr.
David Buck, one of the senior partners, serves as the partner in charge of Armed Protection’s
account. He helped Mr. Kilgore to write the letter to Mr. Jones offering this position,
structuring the offer and its terms, and drafting the proposed employment contract.
Mr. Jones considered the offer and told Mr. Kilgore that he would take the offer. In order to
get the customer list and the other trade secrets, Mr. Jones had to access a server that was in
Birmingham. Mr. Jones was familiar with the process necessary to do that because of his time
with Apex.
He accessed the server in Birmingham from his residential location in Georgia. He got the
information that Mr. Kilgore wanted and then quit Apex.
Apex has now sued Mr. Jones, Mr. Kilgore, and Armed Protection in the Jefferson County Circuit
Court for trade secret theft (Code of Alabama § 8-27-2) (Jones, Kilgore, and Armed Protection);
breach of the non-compete covenant (Jones); and Tortious Interference (Kilgore and Armed
Protection). Counsel for the defendants has now removed the case to the Federal District Court
in the Northern District of Alabama (Birmingham) based on Diversity of Citizenship.
Select one of the legal issues that we discuss in class, identify the relevant facts, the applicable
legal rules and principles, analyze the issues, and provide your conclusion (IRAC).
Non-Required Perspective Readings:
1.
2.
3.
4.
Waddell v. Reed, Inc. v. United Investors Life Insurance Company, 878 So.2d 1143 (Ala. 2003).
KW Plastics v. United States Can Company, 131 F.Supp.2d 1265 (2001).3
Alabama Law of Damages § 36:59 (6th ed.).
Media3 Technologies, LLC v. Mail Abuse Prevention Systems, et al., 2001 WL 92389 (D. Mass.
Jan. 2, 2000) (only the Westlaw citation is available) (information on internet jurisdiction and
tortious interference).
5. Hunter Investment Management, LLC v. Cuttler, et al., 257 F.Supp.3d 891 (S.D. Ohio 2017).
“[L]ack of justification, embodies the central aspect of this tort: the interference must be
improper to be actionable. Id. at 925. Whether wrongful means are employed, “remains open
to a trier of fact’s determination.” Id. at 927.
6. Ross & Baruzzini, Inc. v. Estopinal Group, LLC, 2013 WL 441092 * 2 (S.D. Ill. Feb. 5, 2017) (“sharp
dealing and overreaching or other conduct below the behavior of men similarly situated . . . . ).
2
3
The term as used in the fact pattern is not self-defining.
KW Plastics is a company headquartered in Troy.
7. BP Environmental Services, Inc. v. Republic Services, Inc., 946 F. Supp.2d 402, 408 (E.D. Pa. 2013)
(‘In evaluating whether a defendant acted improperly, ‘the central inquiry is whether the
defendant’s conduct is sanctioned by the rules of the game which society had adopted.’ ”).
8. Phillips v. Selig, 959 A.2d 420, 435 (Pa. Super 2008) (action filed by umpires’ union against
baseball organizations, umpires and a law firm representing the umpires’ union; “Because in our
society the free expression of opinions is encouraged, we cannot conclude that the criticisms of
Hirschbeck and Brinkman violated any of the ‘rules of the game.’”).
9. Harper-Lawrence, Inc. v. United Merchants and Manufacturers, 619 A.2d 623, 568 261 N.J.
Super. 554 (1993) (descriptions of improper conduct and justification: conduct that is “both
injurious and transgressive of generally accepted standards of common morality of the law;”
whether conduct is “sanctioned by the ‘rules of the game’”; the law protects against “sharp
dealing or overreaching or other conduct below the behavior of fair men similarly situated.”).
10. Amerinet, Inc. et al. v. Xerox Corp., 927 F.2d 1483 (8th Cir. 1992) (competitor’s privilege;
Restatement (Second) Torts § 768).
11. James O. Pearson, Liability for Interference with At Will Business Relationships, 5 American Law
Reports 4th 9.
12. Eric C. Surette, Interference with Business Relationship or Business Expectancy, 44B American
Jurisprudence 2d, Interference § 47 (2018 update).
13. Henry F. Luepke, Tortious Interference with Covenants Not to Compete, 66 Journal of the
Missouri Bar 88 (2010).
14. Tortious Interference with Contracts-Privileges, Mississippi Law of Torts § 17:6 (2d ed.).
15. Tortious Interference with Prospective Economic Advantage (or Business Expectancy)Introduction, 20A2 Minnesota Practice Series § 33:57.
16. Mark P. Gergen, Tortious Interference: How It Is Engulfing Commercial Law, Why This Is Not
Entirely Bad, and A Prudential Response, 38 Arizona Law Review 1175 (1996).
…
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