The Fifth Unstated Element of Tortious Interference Claims

Most Virginia litigators will tell you that there are four elements to a claim of tortious interference with contractual relations in Virginia: (1) the existence of a valid contractual relationship or business expectancy; (2) knowledge of the relationship or expectancy on the part of the interferor; (3) intentional interference inducing or causing a breach or termination of the relationship or expectancy; and (4) resultant damage to the party whose relationship or expectancy has been disrupted.

There is a line of cases in federal court, however, that recognizes a fifth, “unstated” element of tortious interference; namely, the existence of a competitive relationship between the party interfered with and the interferor. In 17th St. Associates, LLP v. Markel Int’l Ins. Co., 373 F. Supp. 2d 584, 600 (E.D. Va. 2005), the court found that a reading of pertinent Virginia Supreme Court cases implied that “the tort of intentional interference with a business expectancy contain[s] a fifth, unstated element to the prima facie case: a competitive relationship between the party interfered with and the interferor.”

Back in May, the Eastern District of Virginia dismissed a tortious interference claim with prejudice because, among other hush.jpgreasons, “Plaintiffs…have not alleged that IRI was their competitor.” (See AdvanFort Co. v. International Registries, Inc.). The court cited the 17th St. Associates case as authority for that supposed requirement. But is there any such thing?

In Schaecher v. Bouffault, decided June 4, 2015, the Virginia Supreme Court recited the elements of tortious interference with contractual relations as “(1) the existence of a valid contractual relationship or business expectancy; (2) knowledge of the relationship or expectancy on the part of the interferor; (3) intentional interference inducing or causing a breach or termination of the relationship or expectancy; and (4) resultant damage to the party whose relationship or expectancy has been disrupted.” The existence of a competitive relationship was not included.

The defendant in that case argued that she could not be held liable for tortious interference because the tort only applied to “competitive interference” and she was not a competitor. The Virginia Supreme Court declined to rule on that particular issue as it was not necessary to its holding.

Federal courts are now starting to recognize that Virginia may not actually require a fifth element (which would certainly explain why it has been “unstated” for all this time). Earlier this week in the AdvanFort case, the court amended its prior dismissal of the tortious interference claim to one without prejudice, expressly recognizing (in light of the Schaecher decision) that the Virginia Supreme Court “may be receptive to a claim for tortious interference even where a competitive relationship does not exist between the parties.”

Contact Us

Virginia: (703) 722-0588
Washington, D.C.: (202) 449-8555
Contact Information