Civil Jury Instructions – Economic Interference – Comment period expires March 30, 2018

The “established standard of a trade or profession” aspect of “improper means” has a very shaky foundation under Utah law. “Improper means” include interference which involves “violations of statutes, regulations, or recognized common-law rules.” Leigh Furniture & Carpet Co. v. Isom, 657 P.2d 293, 308 (Utah 1982). Also “[c]ommonly included among improper means are violence, threats or other intimidation, deceit or misrepresentation, bribery, unfounded litigation, defamation, or disparaging falsehood.” Id., quoting Top Service Body Shop, Inc. v. Allstate Insurance Co., 582 P.2d 1365, 1371 & n. 11 (Or. 1978). Of all the bases for establishing improper means, a violation of trade or professional standards is the least supported by legal precedent and has a tenuous genesis in Utah. In Utah, the concept was first proposed in Leigh Furniture which cited Top Service, 582 P.2d at 1371 (“They [the alleged means of interference] may be wrongful by reason of a statute or other regulation, or a recognized rule of common law, or perhaps an established standard of a trade or profession” [emphasis added]). Notably, the Top Service decision contained no specific citation for that proposition, but only a general reference to the Restatement (Second) of Torts § 767: “Business ethics and customs. Violation of recognized ethical codes for a particular area of business activity or of established customs or practices regarding disapproved actions or methods may also be significant in evaluating the nature of the actor’s conduct as a factor in determining whether his interference with the plaintiff’s contractual relations was improper or not.” In turn, the Restatement references no definitive case law in support of this proposition. The closest reference is a Massachusetts’ case which, in a “predictive approach,” determined that the approach “a Massachusetts court would most likely follow under the circumstances is as follows: a violation of established standards in a trade or profession may satisfy the ‘improper means’ element of tortious interference with an existing or prospective business relationship.” Ary Jewelers, LLC. v. IBJTC Bus. Credit Corp., 414 F. Supp. 2d 90, 95 (D. Mass. 2006) (emphasis added). Other jurisdictions which have evaluated this basis for improper means have uniformly required “well-defined, established rules or standards of a trade, association or profession,” see e.g., Stevenson Real Estate Servs., Inc. v. CB Richard Ellis Real Estate Servs., Inc., 138 Cal. App. 4th 1215, 1221–23, 42 Cal. Rptr. 3d 235, 240–42 (2006), such as banking industry confidentiality standards, Ary Jewelers, LLC. v. IBJTC Bus. Credit Corp., 414 F. Supp. 2d 90, 94 (D. Mass. 2006). These standards most often take the form of a written advisory code recognized as a standard of ethics in an industry, see e.g., Volt Servs. Grp., Div. of Volt Mgmt. Corp. v. Adecco Employment Servs., Inc., 178 Or. App. 121, 130–32, 35 P.3d 329, 336 (2001), or written rules made available to all association, trade, or professional members, see e.g., Stephenson Real Estate Servs., 42 Cal. Rprt. at 241. “Nebulous” industry standards fall well short of satisfying the improper means standard. Gemini Aluminum Corp. v. California Custom Shapes, Inc., 95 Cal. App. 4th 1249, 1259, 116 Cal. Rptr. 2d 358, 366 (2002). The sole Utah case to address this issue required the plaintiff to “establish the existence of an industry-wide standard” which must be an “external and objective one.” Walker v. Anderson-Oliver Title Ins. Agency, Inc., 2013 UT App 202, ¶¶ 20-21, 309 P.3d 267, 274.

Therefore, the instruction should clarify that only “well-defined, objective, and codified” industry standards can form the basis for a claim.