Tortious Interference Standards
How the two interference torts split once no binding contract exists — New York’s rule that even lawful conduct supports a claim when it procures an actual breach, Carvel’s crime-or-independent-tort ceiling for prospective relations, and Texas’s independently-tortious standard that folds the justification defense into the underlying tort.
Lawful Conduct or Wrongful Means: Where the Two Interference Torts Divide
New York draws the line at breach. The Court of Appeals "has repeatedly linked availability of the remedy with a breach of contract," and once that element is met the defendant’s good behavior is no defense: "where there is an existing, enforceable contract and a defendant’s deliberate interference results in a breach of that contract, a plaintiff may recover damages for tortious interference with contractual relations even if the defendant was engaged in lawful behavior." But "[w]here there has been no breach of an existing contract, but only interference with prospective contract rights, however, plaintiff must show more culpable conduct on the part of the defendant" NBT Bancorp Inc. v. Fleet/Norstar Financial Group, Inc., 87 N.Y.2d 614 (N.Y. 1996). A merger agreement awaiting shareholder approval fell on the wrong side of the line: consummation "represented no more than a hope" and was "not entitled to the same protection that would have been accorded a legally enforceable right to performance."
Carvel gave the "more culpable" standard its content. Carvel Corp. v. Noonan, 3 N.Y.3d 182 (N.Y. 2004) holds that "as a general rule, the defendant’s conduct must amount to a crime or an independent tort," because "[c]onduct that is not criminal or tortious will generally be ‘lawful’ and thus insufficiently ‘culpable’ to create liability for interference with prospective contracts or other nonbinding economic relations." The canonical list is closed and short: "‘Wrongful means’ include physical violence, fraud or misrepresentation, civil suits and criminal prosecutions, and some degrees of economic pressure; they do not, however, include persuasion alone although it is knowingly directed at interference with the contract." The malice exception is confined to conduct "for the sole purpose of inflicting intentional harm on plaintiffs" — Carvel itself escaped because its motive was "normal economic self-interest" — and the tort has a directional element: "conduct constituting tortious interference with business relations is, by definition, conduct directed not at the plaintiff itself, but at the party with which the plaintiff has or seeks to have a relationship."
Texas reached the same architecture and then restructured the defense. Wal-Mart Stores, Inc. v. Sturges, 52 S.W.3d 711 (Tex. 2001) holds that "to recover for tortious interference with a prospective business relation a plaintiff must prove that the defendant’s conduct was independently tortious or wrongful," and that "[c]onduct that is merely ‘sharp’ or unfair is not actionable and cannot be the basis for an action for tortious interference with prospective relations." The court was explicit about why the two torts diverge: "It makes sense to require a defendant who induces a breach of contract to show some justification or privilege for depriving another of benefits to which the agreement entitled him. But when two parties are competing for interests to which neither is entitled, then neither can be said to be more justified or privileged in his pursuit." On the prospective-relations side the affirmative defense collapses into the underlying tort: "Justification and privilege are defenses in a claim for tortious interference with prospective relations only to the extent that they are defenses to the independent tortiousness of the defendant’s conduct."
The playbook follows the pleading. If the client’s deal was a signed, enforceable contract, plead the contract tort and force the defendant to carry justification as an affirmative defense — lawful competition is no shelter once a breach is procured. If the relationship was at-will, unsigned, or contingent on a third party’s approval, the burden flips: identify a freestanding crime or tort (fraud, defamation, threats) directed at the counterparty, not at the client, before filing. And in Texas, do not bother briefing justification as a standalone defense to a prospective-relations claim — argue privilege inside the underlying tort, where the fight now lives.