Tortuous Interferance of a Business Relationship

[j2thep66]

Thanks for the additional feedback. As this opinion varied from the others I'd sincerely appreciate additonal feedback from anyone interested to weigh in.

 

[Michael Wechsler]

I hate using Wikipedia as a "source" for anything, but many times where the information is of no benefit to fudge, there can be useful tidbits that are generally correct. Relevant portions below:

http://en.wikipedia.org/wiki/Tortious_interference

Tortious interference, in the common law of tort, occurs when a person intentionally damages the plaintiff's contractual or other business relationships. This tort is broadly divided into two categories, one specific to contractual relationships (irrespective of whether they involve business), and the other specific to business relationships or activities (irrespective of whether they involve a contract).

Tortious interference with business relationships occurs where the tortfeasor acts to prevent the plaintiff from successfully establishing or maintaining business relationships. This tort may occur when a first party's conduct intentionally causes a second party not to enter into a business relationship with a third party that otherwise would probably have occurred. Such conduct is termed tortious interference with prospective business relations, expectations, or advantage or with prospective economic advantage.

The key word here is "maintaining" a business relationship. All of this said, your situation is NOT the usual instance of a tortious interference lawsuit. I don't recall seeing one in such a fashion but, if I'm the attorney, I make my prima facie case and force you to defend yourself to disprove why you aren't liable. In fact, if you did something that would be "unwholesome" like this, I can't say that a judge wouldn't feel that he/she would find a way to make it difficult on you. People are people. If you've already had bad results from your current case (frivolous I read?) then you've got some challenge here. Perhaps the judge might want to create "new law" or go where traditionally this tort does not go. I don't know.

Note that I haven't seen any paperwork or reviewed what the law is in your state to make a prima facie case nor reviewed case law. As it is, any attorney who puts forward a case which satisfies the elements, even technically, has now passed the burden onto your shoulders. Just IMHO.

 

[j2thep66]

Thanks for your additional feedback. I have engaged in a back & forth tit for tat with my x. At the time I did not consider my actions any more unwholsesome than her actions however as hind site is 20/20 I obviously see how something like this can boomarang so to speak.

For the sake of argument, what defense strategies would you recommend aside from falling on my sword or the mercy of the court. Thanks.

 

[jharris352]

1.That is nearly your entire defense. "Interference" has a meaning that goes well beyond mere interaction. Your main defense is that she has "dirty hands." Its a principle of Equity (Justice) that a participant in a wrongful act may not recover from a related damage. You did not "interfere" by bringing something that is true to light. Tortious interference is more to keep competition clean. I can't come to your business and try to hire away all your employees just to cripple your business, or I can't pay someone in your employ to do something to hurt your business. By telling her employer of unknown but relevant public records about your ex-wife you were not interfering with her business at all.

If you took her laptop, or her files at home, or you went around to her clients trashing her, even if it was true, or you somehow prevented her from going to work by sabotaging her vehicle everyday that might be tortious interference. She had a duty to her employer to tell them of things in her personal life that might have adversely affect her eligibility to work with them. She has likely hidden or lied about her adverse history to get or keep her job. Therefore she comes to bar with "unclean hands" and can not recover. Read this Tortious Interference Notice this is generally between two businesses or business people. http://www.lectlaw.com/def2/t061.htm

It is true you had the intent to destroy her business relationship but you did not do anything tortious in the process. Your actions did not "interfere" with her relationship, you simply provided information to them and they chose to act on it. There is a difference.

So to your Answer.

This is not intended to be the entire text of your answer, but an example of how an answer would flow litigation is a complex area of law and is best left to lawyers. Even the best of pro se defendants can not know it all. But this will give you a guideline on what your answer should contain.

Go line by line on their Complaint and deny what you can. Flat denials as much as you can.

Verified Complaint

1. Plaintiff employed. Affirmed.
2. Defendant aware of employment. Affirmed.
3. Parties have Dissolution of Marriage case pending (Actually - divorce finalized Nov. 08 by filing attorney - is the attorney intentionally misleading here & for what purpose?). Denied: Parties are divorced as finalized by Order of the Court filed November 8th, 2009.

Count I - Tortuous Interference with Contract
4. Restate alligations 1-3. Answers restated.
5. Beginning Aug 07 plaintiff employed. Admitted.
6. Defendant aware of. Admitted.
7. Aug 09 Defendent sent letter to employer stating plaintiff fired from previous employment - asks employer to take appropriate action. Admitted in part, Defendant sent a letter to Plaintiffs employer revealing that Plaintiff lied or misled her employer when she was hired about being fired at a previous employment and urged her employer to take whatever action he/she deemed appropriate with the information.
8. By sending letter - Defendant intentionally interfered with Plaintiff's employment contract. Denied Plaintiff is an at will employee and does not have a contract. Further Defendant did not unlawfully interfere by alerting Plaintiff's employer to lies she had told about her previous employment.
9. Direct result of the letter - Plaintiff fired. Denied. Plaintiff was fired when her actions to hide her employment past were uncovered by Defendant's letter. The Defendant's letter was not the reason for the firing, the Plaintiff's own actions in lying to her employer in the application process was the reason for her firing.
10. Plaintiff suffered damages incl lost wages. Denied. Plaintiff is responsible for her own damages because she comes to bar with Unclean Hands.
11. Defendant had no justification. Denied. Defendant's justification was to right a wrong perpetrated by the Plaintiff when she lied about her past employment to her then current employer.
12. By sending letter listing reasons for past termination - Defendant acted intentionally & without legit business purpose. Denied. Defendant acted to protect Plaintiff's current employer from her dishonesty. Revealing dishonesty is a proper justification.
13. By sending letter - Defendant acted with malice, fraud, gross negligence & oppressiveness. Wherefore plaintiff requests comp damages, punitive, costs, appropriate. Denied.

Count II - Tort Interference with a Business Relationship
14. restates 1-13. Answers restated.
15. Plaintiff had business relationship. Admitted in part: Plaintiff had a business relationship that she created through deceit and fraud.
16. Defendant had knowledge of. Admitted.
17. By sending letter - intentionally interfered with. Denied. Defendant did not unlawfully interfere with the Plaintiff's relationship by revealing that Plaintiff had lied in the application process.
18. Plaintiff suffered damages - wrongful interference - direct result of letter. Denied. Plaintiff suffered damages as a result of her own lies and deceit.
19. No justification. Denied. Bringing the truth to light is its own justification.
20. Defendant acted illegally in sending letter to gain advantage in divorce proceedings (again, divorce final Nov 08 - no advantages, possible disadvantages). Denied as above.

Count III - Injunction
21. restates 1-20. Answers restated.
22. Defendant contacted employer - intentionally interfered with employment relationship. Denied.
23. unless restrained - Defendant will continue to contact future employers with intent to interfere. Denied.
24. actions of Defendant will result in immediate irreperable harm to Plaintiff in that future contracts will be in danger. Denied. Plaintiff cannot seek Injunctive relief to give her cover so she may lie to future employers to get and maintain a job.
25. Harm to Plaintiff if injunction not granted outweighs harm to Defendant if motion granted. Denied for reasons in item 24.
26. Plaintifff has no adequate remedy at law. Monetary damages while necessary will not adequately protect Plaintiff. Denied. Plaintiff comes to bar with unclean hands and is not entitled to relief.
27. Interests of public will not be disserved by granting Plaintiff's motion. Denied. Revealing the truth is not against the public interest and Injunctive Relief may not lie to protect inequity.
Wherefore Plaintiff prays for permanent injunction from future contact of Plaintiff employers.

Affirmative Defenses:

1. Plaintiff has not stated a claim upon which relief may be granted.
2. Plaintiff has come to bar with "unclean hands" and cannot obtain relief.
3. Defendant did not unlawfully Interfere with the Plaintiff's employment by revealing the truth to her employer.
4. Plaintiff did not have an employment contract to interfere with.
5. Defendant was justified in his actions.
6. Plaintiff was not damaged by the Defendant's actions but by her own actions.
7. Plaintiff has exaggerated her claim in that Count One and Count Two, even if true, would be the same action and damage.

Wherefore the Defendant requests that this honorable Court deny and dismiss the Complaint of the Plaintiff and throw all costs on them. Defendant specifically requests that no injunctive relief should issue as the Plaintiff cannot seek injunctive relief to cover her deceitful actions.
Submitted by: ____________________-


If the Plaintiff had Admissions, deny all that apply and do not fail to answer them before the 30 days are up.


Then I would start with Admissions:


DEFENDANTS REQUEST FOR ADMISSIONS


According to Discovery procedures outlined in code section xxx.x the Defendant requests these admissions from the Plaintiff. As stated by statute you have Thirty (30) days to admit or deny these admissions or they become admitted by law.

1. Plaintiff was deceitful in the application process to her recent employer in that she did not fully disclose her past employment record including but not limited to the firing from her previous employment.

2. Plaintiff was deceitful in the application process to her recent employer in that she did not fully disclose her past employment record including but not limited to the reasons she was fired from her previous employment.

3. Plaintiff is or was arrested for XXXX.

4. Plaintiff is or was convicted for XXXX.

5. Plaintiff failed to disclose by deceit or obfuscation these arrests and convictions to employer x in her application process.

6. Plaintiff is responsible for her firing and therefore her damages because she deceived her employer about her past.

7. Defendant does not have any duty to Plaintiff to conceal her lies to her employer.

8. Plaintiff does not have an employment contract but is an At-will employee.


You get the idea. After this you start exercising her attorney. You send her as many Interrogatories as the law allows. You send Requests for production of documents. Ask for anything and everything you can think of. She will file to limit your discovery (more money). Then demand documents of her employer. Then you can schedule depositions (her attorney has to attend $$$$$) Ask her 5000 questions. Schedule depositions with her former employer, ask for documents, etc. Mostly her attorney will want to attend and that is just more (money). At $250 an hour or better a 10 hour deposition is $2500. How long do you think she will keep that up? She has unclean hands if I understand the case right.

Answers must be verified. Which means there should be a statement sworn to before a Notary or the clerk that the contents are true and correct to the best of your knowledge and belief. Without a verification your answer can be stricken and you can have a default Judgment entered against you.

Hope that helps.

 

[jharris352]

Note that I haven't seen any paperwork or reviewed what the law is in your state to make a prima facie case nor reviewed case law. As it is, any attorney who puts forward a case which satisfies the elements, even technically, has now passed the burden onto your shoulders.

As you see I posted the longer email that I sent him privately. But as to your quote, I would add, by making a prima facia case he only passes the burden of avoiding summary judgment. Since their is an issue that a trier of fact should weigh. The Plaintiff still has the burden of proof that the preponderance of the evidence suggests that all the elements of the tort have been committed. So, I would disagree that they have "passed the burden of proof." Although in a preponderance case (50+1%) I suppose an argument can be made that each side has a 50+1 "burden" of proof.

 

[Michael Wechsler]

1.That is nearly your entire defense. "Interference" has a meaning that goes well beyond mere interaction. Your main defense is that she has "dirty hands." Its a principle of Equity (Justice) that a participant in a wrongful act may not recover from a related damage. You did not "interfere" by bringing something that is true to light. Tortious interference is more to keep competition clean. I can't come to your business and try to hire away all your employees just to cripple your business, or I can't pay someone in your employ to do something to hurt your business. By telling her employer of unknown but relevant public records about your ex-wife you were not interfering with her business at all.

Nicely done with the help and kudos. Regarding this defense, you might try to raise it but I certainly wouldn't rely upon it. "Unclean hands" should only apply if the plaintiff had been a participant in the "wrong" that had been committed. Wikipedia defines it as follows:

Unclean hands, sometimes clean hands doctrine or dirty hands doctrine[1] is an equitable defense in which the defendant argues that the plaintiff is not entitled to obtain an equitable remedy on account of the fact that the plaintiff is acting unethically or has acted in bad faith with respect to the subject of the complaint—that is, with "unclean hands".[2] The defendant has the burden of proof to show the plaintiff is not acting in good faith. The doctrine is often stated as "those seeking equity must do equity" or "equity must come with clean hands.

The ex-wife committed a crime and paid the price. Ex-wife did not do anything "wrong" or unethical as it relates to the tort - intentionally seeking to harm another with respect to their contractual relationship. Better example is she sues him for breach of contract in his failing to pay the full amount for a repair to his car done by her mechanics at her store. A court may deny relief to her if it's shown that she deliberately played loose with the estimates provided to him leading to a number that would definitely be in excess of what it should have been.

I am not sure it applies in this instance. Perhaps a defense that is similar might be if there is a specific policy the employer has which she violated, e.g. that she was required to disclose her criminal history and she fraudulently concealed it. I'm not quite sure this applies since the "fraud" is not with regard to the subject (and not directed at the defendant.) This would, at least, potentially mitigate damages.

Another defense might be that the plaintiff was not injured because she was being fired for a work violation or was part of a group layoff. As such, her damages are the result of anotehr force, not the information provided.

I'm just playing with this. I don't know any of the facts so take these words for the limited value which they are.

As I said, the best defense IMHO is to knock out the prima facie case. Perhaps he could claim that he was aware of a lie

 

[jharris352]

Prof, I am using "unclean hands" in a slightly different manner here. She has them because she put herself in the position to be fired, not the letter he wrote. By initially lying to her employer about her past, she put herself in a position of being fired when it came to light by whatever means. In other words she never legitimately had the job to begin with, she can not now complain that the defendant brought her fraud to light. It is a slight variation of unclean hands but one I think the Judge is going to buy.

The other part that I didn't publish extensively is that the purpose of this defense is to wear out her checkbook. She is unemployed. Unless she is sleeping with her attorney to pay his bill (no I'm not just being crass that is done far too often) he will be able to exhaust her desire to continue this lawsuit with just a few good depositions.

I think this defense puts him in a light that shows he didn't "unjustifiably interfere." When someone is committing a fraud and you "save" the injured party from the fraud by alerting them to it, one can hardly argue that it is a tort.

Lets give an example: We have plenty of scams that we hear about and alert people to on this board. They have a business relationship with the people on this board when they try to collect a debt that isn't really owed. When I tracked one of them down and showed that they were a scam, I interfered with their business relationship by exposing them. However, it was not "unjustified" because I was exposing their wrong doing.

He is doing the same here with a little personal twist that he knows the Plaintiff. She is pulling a scam on her employer. She got her job by lying. He knows about her scam and alerts her employer to information that shows she lied. The employer would have never hired her to begin with had she not lied to them, so they fire her. Her firing is the natural consequence of HER actions not his.

I hope that makes sense. As usual, legal arguments are rarely cut and dried, thats why we have Judges. I'm just saying that a Judge or jury is not going to be very sympathetic to someone who lied about being fired from a previous job even though what this man did was pretty petty.

 

[j2thep66]

Plaintiff filed for Motion for Preliminary Injunction. I argued Pro Se that:

*Plaintiff's own actions in lying to her employer was the reason for firing vs. interference
* That danger or damage could only occur if the Plaintiff is not forthcoming vs. interference
* Plaintiff comes to bar w/unclean hands, as such unlikley to win on the merits,
* Defendant would suffer greater harm for submitting truth than Plaintiff for maintaining deceit, and that
* public interest would be disserved by granting Plaintiff's motion as injunctive relief may not lie to protect inequity.

The judge made a golf reference saying "a ball must be tee'd up, but it must also be hit. You did not need to hit the ball..." and granted the prelim injunction saying that all four points of merit were reasonably met. The case was continued upon review of the Defendant Pro Se's response to the original Motion outlined at the beginning of this post.

Any suggestions moving forward? Thanks in advance.

 

[j2thep66]

Any new feedback? Check out the update to the post. I'd appreciate any additional thoughts.

It seemed as if the judge's ruling in granting the prelim injunction implied that although the Plaintiff had an obligation to tell the truth to her employer, it still could be considered interference if a 3rd party informed her employer of lies told on her application.

Thoughts? Thanks in advance!

 

[jharris352]

I doubt that is what the Judge was inferring. More likely he was simply placing an injunction to prevent further childish actions. Judges like peace.