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One Very Powerful Way to Defeat a Tortious Interference Claim in New York

As noted in "How to Prove Tortious Interference Under New York Law" and "The Most Formidable Defense to a Tortious Interference Claim in New York," there are several ways to defeat a tortious interference claim under New York law, but some are typically more potent than others.

While the "without justification" prong is certainly the strongest defense in most instances, there is another defense that arises in specific subsets of tortious interference claims. More particularly, where a new employer has been sued in tandem with its new employee based upon that employee's interference with his former employer's client contracts and contacts for allegedly breaching his non-compete agreement (in other words, "poaching" his former employer's customers), the new employer may have a viable defense that should not be overlooked:

Where the employee was looking to violate his agreement with his former employer long before the new employer became involved. Under these circumstances, the plaintiff will be unable to establish that the new employer acted "intentionally," and in many instances, the tortious interference claims will be subject to dismissal as a matter of law.

Here are but a few examples:

Michele Pommier Models v. Men Women N.Y. Model Mgmt., Inc., 173 F.3d 845 (2d Cir. 1999) (affirming dismissal of tortious interference claim against defendant modeling agency where "evidence overwhelmingly demonstrated that [model] intended to break her contract with [plaintiff agency] several months prior to her negotiations with [defendant], and that it was she who sought out [defendant];" and rejecting argument that defendant's cooperation with plaintiff's intentions constituted tort); Metito (Overseas) Ltd. v. GE, 2009 U.S. Dist. Lexis 12590, at *22-23 (S.D.N.Y. Feb. 18, 2009) (no reasonable jury could conclude defendant induced breach where former employee was unhappy working for plaintiff and actively sought out other employment opportunities for two years before applying, unsolicited, to defendant); Cantor Fitzgerald Assocs., L.P. v. Tradition North Am., Inc., 299 A.D.2d 204 (1st Dep't 2002) (affirming dismissal of tortious interference claim where defendant had knowledge of employment contracts, but evidence clearly established that employees were dissatisfied with employment at plaintiff company, were determined to leave that employment, actively sought new employment before any involvement by defendant, and dictated terms they would require in order to work for defendant); Click Model Mgmt., Inc. v. Williams, 167 A.D.2d 279 (1st Dep't 1990) (after model complained about dissatisfaction with current agency, defendant said "You ought to a come over to Ford" and later facilitated phone call on her behalf; court affirmed dismissal of tortious interference claim on ground that such activities were insufficient to raise factual question regarding intentional procurement); Rapp Boxx, Inc. v. MTV, Inc., 226 A.D.2d 324, 325 (1st Dep't 1996) (affirming dismissal of tortious interference claim where evidence showed that contracting party voluntarily repudiated agreement, defendant did not solicit him, and he later independently initiated discussions with defendant)."


Jonathan Cooper
Non-Compete, Trade Secret and School Negligence Lawyer