“Tortious” interference with a prospective economic
relationship occurs when a party improperly prevents two others
from entering a contract or otherwise doing business together. The
claim has four elements. A plaintiff must show that: (1) the
defendant interfered with the plaintiff’s prospective economic
relationship; (2) the plaintiff would have entered that economic
relationship in the absence of the defendant’s conduct; (3) the
plaintiff was injured; and (4) the defendant acted with the sole
purpose of harming the plaintiff or used “improper
means.” In most states, the phrase “improper means”
generally refers to conduct that is independently unlawful.

Proving tortious interference with a prospective economic
relationship is often more difficult than proving tortious interference with
contract because courts are more protective of existing
contracts than potential opportunities. Where a plaintiff can show
a valid contract, the interference need not be independently
unlawful to be actionable. Prospective relationships, in contrast,
can fail for many legitimate reasons, such as economic competition.
Courts thus set a high bar before they will impose liability on
third parties for a prospective relationship’s failure.

A party that proves a claim for tortious interference with a
prospective economic relationship may recover as damages the
profits it expected from the lost relationship. Where the defendant
secures the relationship the plaintiff lost, the plaintiff may
recover defendant’s ill-gotten gains, either on the theory that
the defendant should not profit from its wrongdoing or that the
defendant’s gains are a measure of the plaintiff’s losses.
Punitive damages may also be available for particularly outrageous
conduct.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.