Tortious Interference with At-will Employment

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Wisconsin law affords at-will employees a cause of action for tortious interference with contract if their termination was triggered by the improper motives of coemployees, officers or directors, or outside third parties.

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by Mark R. Hinkston

erformance-based firings or financially motivated layoffs are facts of corporate life. While the majority of at-will employee terminations are legitimate, sometimes supervisors or colleagues induce employee terminations (or thwart promotions) out of malice with no corporate benefit. When this happens, some employees have sought relief via a claim for tortious interference with contract - a claim long-recognized in Wisconsin, generally to salve the tortious usurpation of a valuable deal.

The most recent high-profile example of tortious interference claims in the at-will employment context is Mackenzie v. Miller Brewing Co.,1 more commonly known as the "Seinfeld case." Mackenzie, after his termination, asserted tortious interference claims against his supervisor for allegedly defeating a promotion, and a female coemployee for allegedly causing his termination after he told her more than she wanted to hear about a certain Seinfeld television show episode. Mackenzie also asserted intentional misrepresentation claims against Miller Brewing and his supervisor, alleging that Miller misrepresented that his position would not be affected by a company reorganization.

The Wisconsin Court of Appeals rejected Mackenzie's tortious interference and misrepresentation claims. Only the misrepresentation claims were the subject of Mackenzie's appeal to the Wisconsin Supreme Court. The supreme court held that an at-will employee may not sue for misrepresentation when an employer fails to disclose facts relating to the employee's status. Because the supreme court did not address Mackenzie's tortious interference claims, any subsequent discussion herein of the Mackenzie case refers to the court of appeals decision.

Mackenzie highlights an employee plaintiff's heavy burden in pursuing a tortious interference claim against an employer. Corporate-actor defendants are insulated by certain "conditional privileges." Also, success hinges on evidence that a termination or demotion was the result of an "improper motive" - generally considered to be akin to ill will or a malicious act intended solely for self-benefit, to the exclusion of corporate interests.

This article addresses Wisconsin courts' treatment of tortious interference claims in the at-will employment context, with specific focus on: 1) the tort's genesis and development; 2) the categories of targeted defendants and the "conditional privileges" they assert; and 3) the concept of "impropriety" and the burden of proving it.

Tort Meets At-will Employment

Courts are reluctant to second-guess employment decisions2 and disfavor attempts to "shoehorn" tort causes of action into contractual relationships.3 Thus, tortious interference with at-will employment claims occasionally are greeted with initial suspicion.

First, some take the "employment-at-will doctrine" and the unavailability of a breach of contract/wrongful discharge claim to mean that the at-will employment relationship is not "contractual" and, thus, not entitled to remedy via a tortious interference with contract claim. It indeed is true that at-will employees can be terminated for "good cause, no cause, or morally wrong cause."4 Yet the basis for at-will employment is a contract - albeit one "at-will" - and "until it is terminated the [at-will employment] contract is a subsisting relation, of value to the plaintiff, and presumably to continue in effect."5

Second, suspicion also arises because the interference tort sometimes is viewed as a "back-up remedy" against breaches of contract6 - an attempt to get at an employer's "deeper pockets." Yet, the employer is not a viable party in a tortious interference with at-will employment claim. The employer cannot be liable for interference because liability is not imposed for interference with one's own contract, in this case the at-will contract between employer and employee. Thus, the employer cannot be targeted and will not possess vicarious liability.7 However, corporate officers and directors may be targeted for personal liability.

An employee's tortious interference claim in a civil action also may be suspected as a means to skirt the Wisconsin Worker's Compensation Act. Yet, such a claim is not preempted by the Wisconsin Worker's Compensation Act to the extent that the plaintiff seeks "economic loss" rather than damages for "mental or physical harm."8 Thus, an employee has potential to recover in a civil action pecuniary loss of benefits, causally related consequential losses, and punitive damages.9

Metamorphosis of Tortious Interference

Wisconsin has long recognized the tortious interference with contract cause of action in many contexts. The tort has been applied to protect against intermeddling with a variety of contractual relations, including real estate deals, listing agreements, lease rights, contracts to perform services, "exclusive rights" agreements, and business purchases.10

Wisconsin has adopted the Restatement (Second) of Torts formulation and analysis for tortious interference claims.11 Section 766 provides that: "One who intentionally and improperly interferes with the performance of a contract (except a contract to marry) between another and a third person by inducing or otherwise causing the third person not to perform the contract, is subject to liability to the other for the pecuniary loss resulting to the other from the failure of the third person to perform the contract."12 Tortious interference claims in the at-will employment context fall within this paradigm, the claim being that the intermeddler has improperly induced the third person (the employer) to terminate the at-will employment contract.

Wisconsin recognizes two additional species of tortious interference: 1) interference with a person's own performance under a contract, which includes making the performance more expensive or burdensome;13 and 2) interference with another's prospective contract.14 Tortious interference with prospective contract is asserted sometimes when an at-will employee loses a promotion or a new job.

Mendelson and its Progeny: Improper Motive

In 1960, in Mendelson v. Blatz Brewing Co.,15 the Wisconsin Supreme Court addressed whether a discharged at-will employee could maintain an action against others within the company for tortious interference arising out of the employee's termination. Mendelson, the brewery's minority shareholder, alleged that the majority shareholders and officers conspired to remove him as general manager (so one of the defendants' sons could have the job) and force him to sell his stock. The supreme court held that Mendelson stated a claim, noting that "Wisconsin has aligned itself with the majority in holding that a cause of action is maintainable for unlawful interference with an employment contract terminable at will."16

The court recognized a "privilege" for corporate officers or directors in terminating employees, but noted that the privilege is destroyed if the object "is to put pressure upon the plaintiff and coerce him into complying with the defendant's wishes in some collateral matter."17 The court held that in order to state a claim against a corporate officer personally, it is not necessary to allege malice, only an improper motive.18

The court in subsequent cases adhered to the corporate officer/director conditional privilege, noting that "[i]f directors are acting in good faith for the protection of the interests of their corporation and in the course of their official duty, they should be protected" but that the privilege "will be destroyed by a wrongful motive."19 "Wrongful motive" in the corporate director context has been interpreted to mean a situation where directors exceed the scope of their official duties and make bad faith "decisions which are antithetic to the interests of the company" - in effect breaching their fiduciary duties to the corporation.20

Extension of Conditional Privileges

The supreme court's recognition of a privilege for officers and directors spawned conditional (or qualified) privileges for other groups targeted by discharged at-will employees, including coemployees, third parties, and attorneys giving advice.

Coemployee Privilege. Discharged employees have sued coworkers for tortious interference. As noted, the most famous recent case is Mackenzie v. Miller Brewing Co.21 Mackenzie, an upper-level manager, sued his employer (Miller Brewing), his supervisor, and a coemployee arising out of a lost promotion and subsequent termination.22 The coemployee reported to Miller that Mackenzie had inappropriately commented on a Seinfeld television episode that, by innuendo, referred to female sexual anatomy. Miller terminated Mackenzie for exercising "poor management judgment." Mackenzie asserted a tortious interference with contract claim against the coemployee for "fraudulently representing" that she felt harassed by the conversation. The jury found tortious interference and awarded $0.00 in compensatory damages and $1.5 million in punitive damages. The trial court set aside the award on the ground that without compensatory damages, there could be no punitive damages. The court of appeals upheld the trial court, noting that the coemployee was protected by the "conditional privilege" available to those reporting workplace problems.23

The court harkened back to the coemployee privilege it had first recognized in Wolf v. F & M Bank,24 in which a discharged bank president blamed his termination on two female coemployees who accused him of sexual harassment. The court found that Mackenzie had not mustered evidence of "ill will" or "improper" motive, which according to the court in Wolf was the sine qua non to overcome the coemployee privilege.25 Recognizing "society's interest in encouraging complainants to report sexual harassment," the court refused to carve out an exception to the general rule of preclusion of punitive damages in the absence of compensatory damages.26

Third Parties: Privileges to Assert Complaints and Truthful Information. Discharged employees also have asserted tortious interference claims against third parties to blame them for their termination. The right to be free from unlawful third-party intermeddling from those outside the workplace was recognized by the Wisconsin Supreme Court long ago in Johnson v. Aetna Life Insurance Co.27 In Johnson, an employee injured on the job claimed that his employer's insurer caused his termination after he refused to settle his injury claim on the insurer's terms. The court recognized the plaintiff's cause of action by stating: "[T]he plaintiff had the right to dispose of his labor wherever he could to the best of his advantage. This is a legal right entitled to legal protection.... and, if anyone assumed to meddle in his affairs, he did so at his peril."28

Courts to this day continue to protect at-will employment from outside threats. However, as with officers and coemployees, third parties receive qualified insulation. For example, in Augustine v. Anti-Defamation League of B'nai B'rith,29 the supreme court held that a radio listener who complained about how a radio announcer handled comments made during a radio program was protected because his complaints were made "in the exercise of a privilege to assert complaints" emanating from the right of free speech guaranteed by the U.S. Constitution.

In Liebe v. City Finance Co.,30 the court of appeals addressed a tortious interference claim brought by a finance company employee who was discharged when his employer found out that he had disseminated a flier criticizing finance company loans. The employee sued a finance company that he alleged was responsible for alerting his employer of the flier. The court held that the defendant was privileged because the flier merely disseminated truthful information. The court adopted Restatement (Second) of Torts section 772 (1979), which provides that the transmission of truthful information is privileged and proper.31

Attorneys: "Honest Advice" Privilege. Because attorneys often are asked to advise corporate clients on termination decisions, they sometimes are targeted by terminated employees. As with the other actors, there is a line that attorneys may not cross. Although attorneys generally are not liable to third parties for acts committed within the scope of the attorney-client relationship, this immunity is qualified and does not insulate the attorney who is guilty of fraud or a malicious or tortious act.32 Thus, although attorneys who give truthful advice within the scope of their representation are insulated, based on the "honest advice" privilege of Restatement (Second) of Torts section 772,33 an attorney who is complicit with his client in terminating an employee via improper motives invites liability.

Other Conditional or Qualified Privileges. Wisconsin courts recognize privileges in several other contexts to thwart terminated employees' tortious interference claims. For example: 1) elected officials have a privilege, acting in their public capacity, to terminate political appointees,34 2) doctors operating a hospital have a "conditional privilege" when a termination is motivated "to preserve the hospital's interests" in providing medical care,35 3) doctors who decide whether to extend medical or surgical privileges to a fellow doctor are insulated by Wisconsin's peer review statute (Wis. Stat. section 146.37),36 and 4) those sharing a common interest or common enterprise have a privilege to share employment information.37

"Improper Motive": When Self-benefit Vitiates Corporate Interests

No clear-cut legal definition for "improper" or "wrongful" motive in the employment context exists; however, courts generally have found that where one promotes a "private agenda" for self-benefit, at odds with the interests of the corporation, that suffices as "improper."38 While malice is not necessary to render a motive improper,39 when present, its existence almost always will be conclusive proof of an improper motive (assuming that malice is the sole or predominant motive).40

Examples of improper motives include inducing a discharge: to coerce the plaintiff to compel payment of a debt; to prevent the employee from bringing suit or reporting a workplace regulation violation; to force compromise of a claim; or to extort money.41 It also is "improper" for one to induce termination by transmitting false information,42 such as a coemployee telling the employer that an employee has committed a crime or slandered the employer when they, in fact, have not done so.

If an officer or director acts to further the corporation's interests, there is no collateral or improper motive.43 Thus, improper motives do not exist where the employee's performance is deficient,44 when a business suffers financial losses under the employee's watch,45 or when the employee's actions create a conflict of interest.46

Difficulty creeps in when "mixed motives" are alleged, such as where a termination will benefit the corporation but also bring an officer or director personal financial gain.47 However, courts have held that even if a termination is motivated by personal "greed," it is not "improper" or "collateral" if it benefits the corporation.48 Courts generally give deference to corporate officers in view of the "business judgment rule" and will consider the "rules of the game" for each particular business context.49

Subjective Privilege: The "Impropriety" Factors of Section 767

In contexts where there is no applicable conditional privilege, the trier of fact will apply factors set forth in Restatement (Second) of Torts section 767 to determine the "impropriety" of a defendant's actions.50 The factors include the actor's conduct and motive, the various interests involved, the proximity of the actor's conduct to the interference, and the relations between the parties.51 The Comments to Restatement (Second) of Torts section 767 provide that "[i]t is in the application of [section 767] that the most frequent and difficult problems of the tort of interference with a contract or prospective contractual relation arise."52

In Mackenzie v. Miller Brewing Co.,53 in addition to targeting his coemployee over the Seinfeld conversation, the plaintiff also asserted a tortious interference claim against his supervisor for opposing a promotion. The jury awarded $100,000 on the claim. The court of appeals reversed the judgment, applying the section 767 factors to determine that the acts of Mackenzie's supervisor were privileged (apparently since Wisconsin courts had not previously expressly recognized a "supervisor's privilege").54 After weighing the competing interests, the court noted that the supervisor "was in a legitimate position to comment on Mackenzie's managerial abilities"55 and that "[c]ourts have been reluctant to recognize an at-will employee's interest in a promotion and have protected a supervisor's freedom to comment on a subordinate's qualifications for advancement."56 Although the court did not expressly create or recognize a "supervisor's privilege" in rejecting Mackenzie's tortious interference claim against the supervisor, its opinion strongly implies that one exists.

From Privilege to Propriety: Confusion Creeps In

Mendelson and its "conditional privilege" progeny seem to clearly place the onus on the plaintiff to prove an "improper motive" in order to impose liability on the corporate or third-party actors otherwise insulated by privileges. However, confusion haunts the analysis of those situations where there has been no recognized conditional privilege (thereby triggering application of the section 767 factors) because: 1) the applicable jury instruction (Wis. JI-Civil 2780) does not jibe with relevant case law; and 2) there is a lack of clarity as to which party has the burden of proving that the defendant's acts are "improper."

Jury Instruction Misalignment. The Restatement of Torts definition of tortious interference initially imposed liability on "one who, without a privilege to do so, induces or otherwise purposely causes a third person not to" perform a contract with another.57 The Restatement (Second) of Torts changed the focus to whether the actions are "improper," imposing liability on "[o]ne who intentionally and improperly interferes with the performance of a contract."58 Thus, "privilege" was replaced by "propriety."

Wisconsin Civil Jury Instruction 2780 provides the roadmap for pursuing tortious interference claims. It places the burden on the plaintiff to prove intentional interference, causation, and damages. The instruction provides that the defendant has the burden of proving that his or her actions were "justified" or "privileged," and the suggested verdict question asks whether the defendant's interference was "justified" as opposed to whether it was "improper." Thus, despite the Restatement switch from "privilege" to "propriety" and the fact that a prima facie case for tortious interference requires the interference to be "intentional and improper," Wis. JI-Civil 2780 asks the jury to determine whether the defendant's acts were "justified" or "privileged." This divergence between the instruction language (privilege) and the Restatement reformulation (propriety) fosters confusion.

Burden of Proof Quandary. The Wisconsin Civil Jury Instructions Committee has noted that "[n]o Wisconsin appellate court has determined whether the plaintiff must show 'improper' interference or if the defendant must prove that his or her interference was justified. Nor does the Restatement delineate on whom the burden lies."59 The committee concurred with two Wisconsin federal court decisions, Chrysler Corp. v. Lakeshore Commercial Finance Corp.60 and Federal Pants Inc. v. Stocking,61 to surmise that the "plaintiff establishes a prima facie case by showing an intentional interference with his or her contract by defendant, and then the latter must prove justification for his or her acts."62

In Chrysler, the U.S. District Court for the Eastern District of Wisconsin resorted to Prosser's perception (in 1964) of a general agreement that "the burden of proving that it is 'justified' rests upon the defendant."63 In Federal Pants, the Seventh Circuit Court of Appeals cited to the burden of proof pronouncement in Chrysler. However, just six years later (in 1991), it noted that under Wisconsin law, "the question of which party bears the burden of proving that the defendant's conduct is improper is an unsettled issue of law."64 There has been no express Wisconsin appellate court guidance on the issue since that time.

The instructions committee and courts need to reassess and clarify the issue in view of the shift from privilege to propriety. Perhaps the time has come for an express declaration that the burden of pleading and proving that the defendant's actions are "improper" is on the plaintiff. Several reasons mandate the change. First, placing the burden on the defendant gives the wrong impression that the plaintiff need only show intentional interference to impose liability. With all due respect to the Civil Jury Instructions Committee, under present Wisconsin law a plaintiff does not establish a prima facie case by showing merely an intentional interference with his or her contract. Interference alone does not establish the tort. The interference also must be "improper."65 Placing the burden on the plaintiff also would create consistency with Mendelson, where the supreme court took note of case law stating that "[t]he plaintiff must establish that instead of acting within the privilege, the defendant acted outside of it, that is to say, from an improper motive."66

Placing the burden on the defendant to prove that his or her acts were "proper" has been criticized by some commentators because it creates an inherent presumption that the defendant is liable.67 Additionally, Prosser (who the Chrysler court relied upon to intimate that the burden was on defendant) noted 20 years later - after the issuance of the Restatement (Second) of Torts - that the new Restatement (Second) formula "might be read, as some of the cases imply, to put the burden on the plaintiff in the first instance to show impropriety, and it is no doubt an improvement when so read."68

The apparent trend in other jurisdictions is to place the burden on the plaintiff to prove impropriety.69 Although Wisconsin courts have not expressly imposed the burden of proving impropriety on the plaintiff, the Wisconsin Court of Appeals appears to have tacitly adopted such an approach in Mackenzie.70 In reversing the $100,000 judgment against Mackenzie's supervisor, the court concluded that "Mackenzie failed to provide any evidence of improper conduct that would constitute tortious interference with his prospective contract."71

As discussed above, in cases where no conditional privilege exists, the burden should be on the plaintiff, using the Restatement section 767 factors, to show that the defendant's interference was "improper." In the conditional privilege cases, the message is simple: if the plaintiff cannot prove "improper motive," the plaintiff will lose.

Former Employer Immunity: References to Potential Employers

Terminated employees commonly request that their former employer provide a reference to potential future employers. Wis. Stat. section 895.487 affords the employer providing the reference immunity from "all civil liability that may result from providing that reference" unless the employee can prove by clear and convincing evidence that: 1) the employer knowingly provided false information in the reference, or 2) the employer made the reference maliciously or in violation of Wis. Stat. section 111.322 (prohibiting employment discrimination).

Those who suspect that their former employer has wrongfully thwarted their attempts to gain new employment face the practical obstacle of discovering the exact nature and substance of the former employer's communicated information. Potential employers may be reluctant to provide specific details. Obviously, "you do not possess the qualifications we seek" is more diplomatic than "your former employer said you are a dishonest, unreliable thief." Yet, if the employee is able to discover specific information that rebuts the immunity presumption of section 895.487, the employer faces exposure to a claim for tortious interference with prospective contract.

Conclusion

Mark R. Hinkston, Creighton 1988 cum laude, practices business litigation with Knuteson, Powers & Wheeler S.C., Racine. He is admitted to practice in Wisconsin, Missouri, Kansas, and Colorado. You can reach him at mhinkston@kpwlaw.com.

In view of the freedom and flexibility afforded by at-will employment, courts are "reluctant to interpose the judicial branch between employers and employees."72 A tortious interference claim should not be brought merely to circumvent the general unavailability of a wrongful discharge claim. Discharged at-will employees should resort to a tortious interference claim only when their termination actually was triggered by "improper motive" in conditional privilege cases or "impropriety" in the others. They should be ready and able to prove impropriety, despite the uncertainty over the burden of proof, because even if a conditional privilege applies, success depends upon a showing of improper motive.

The cases discussed here highlight the infrequency of success. However, that infrequency and the judicial reluctance "to interpose" should not lull corporate decision-makers, reporting coemployees, or whistle-blowing third parties into a false sense of security. The "conditional privileges" afforded to corporate actor targets are not licenses to act with impunity.73 The penalty can be great when any of these accused intermeddlers (whether in or out of the company) let personal motives or vendettas influence decisions relating to at-will employees.

Endnotes

1 Mackenzie v. Miller Brewing Co., 2000 WI App 48, 234 Wis. 2d 1, 608 N.W.2d 331, aff'd, 2001 WI 23, 241 Wis. 2d 700, 623 N.W.2d 739.

2 See Strozinsky v. District of Brown Deer, 2000 WI 97, 93, 237 Wis. 2d 19, 614 N.W.2d 443 (noting that the Wisconsin Supreme Court is reluctant to "second guess employment or business decisions, even when those decisions appear ill-advised or unfortunate").

3 See Mackenzie, 2001 WI 23 at 26 (noting Mackenzie "seeks to shoehorn a tort cause of action into his at-will contractual relationship with Miller").

4 Id., 2001 WI 23 at 29.

5 Mendelson v. Blatz Brewing Co., 9 Wis. 2d 487, 491, 101 N.W.2d 805, 807 (1960). See also Kumpf v. Steinhaus, 779 F.2d 1323, 1324 (7th Cir. 1985) (noting the plaintiff "was an employee at will, but even at-will employment is contractual and therefore potentially the basis of a tort action").

6 See Frandsen v. Jensen-Sundquist Agency Inc., 802 F.2d 941, 947 (7th Cir. 1986).

7 See Porcelli v. Joseph Schlitz Brewing Co., 397 F. Supp. 889, 892 (E.D. Wis. 1975), aff'd, 530 F.2d 980 (7th Cir. 1976) (stating "no claim of tortious interference with economic relations can be made against Schlitz, since a defendant's breach of his own contract with the plaintiff is not actionable").

8 Wolf v. F & M Banks, 193 Wis. 2d 439, 457, 534 N.W.2d 877, 884 (Ct. App. 1995). Although emotional distress reasonably expected to result from the interference is normally recoverable on a tortious interference claim, the Wisconsin Court of Appeals has left the door open to the possibility that "it may be inappropriate to award [emotional distress damages] in a tortious interference with contract claim against a coemployee" (because of possible Worker's Compensation Act preemption). Id.

9 Restatement (Second) of Torts § 774A (1979).

10 In Wisconsin, because a contract or prospective contract is essential, there is no remedy for interference with mere "business relations." See Shank v. William R. Hague Inc., 16 F. Supp. 2d 1038, 1044 (E.D. Wis. 1998), aff'd, 192 F.3d 675 (7th Cir. 1999).

11 Pure Milk Prod. Coop. v. Nat'l Farmers Org., 90 Wis. 2d 781, 796 n. 10, 280 N.W.2d 691, 698 n. 10 (1979); Charolais Breeding Ranches Ltd. v. FPC Sec. Corp., 90 Wis. 2d 97, 105-06, 279 N.W.2d 493, 497 (Ct. App. 1979).

12 Restatement (Second) of Torts § 766 (1979).

13 Restatement (Second) of Torts § 766A (1979). See Wisconsin Power & Light Co. v. Gerke, 20 Wis. 2d 181, 121 N.W.2d 912 (1963); Magnum Radio Inc. v. Brieske, 217 Wis. 2d 130, 139-40, 571 N.W.2d 377, 380 (Ct. App. 1998).

14 Restatement (Second) of Torts § 766B (1979). See Cudd v. Crownhart, 122 Wis. 2d 656, 658-59, 364 N.W.2d 158, 160 (Ct. App. 1985).

15 9 Wis. 2d 487, 101 N.W.2d 805 (1960).

16 Id. at 491, 101 N.W.2d at 807.

17 Id. at 492-93, 101 N.W.2d at 808.

18 Id. at 493, 101 N.W.2d at 808.

19 Lorenz v. Dreske, 62 Wis. 2d 273, 287, 214 N.W.2d 753, 760 (1974).

20 Brunswick Corp. v. E.A. Doyle Mfg. Co., 770 F. Supp. 1351, 1366 (E.D. Wis. 1991).

21 Mackenzie, 2000 WI App 48, 234 Wis. 2d 1, 608 N.W.2d 331, aff'd, 2001 WI 23, 241 Wis. 2d 700, 623 N.W.2d 739.

22 Mackenzie asserted the following claims: 1) intentional misrepresentation against Miller and his supervisor; 2) tortious interference with contract against his supervisor (see notes 53-56, infra); and 3) tortious interference with contract against his coemployee.

23 Mackenzie appealed to the Wisconsin Supreme Court, but his tortious interference claims were not the subject of the appeal. 2001 WI 23 at 29. The supreme court addressed only the misrepresentation claims, holding "that there is not a cause of action in Wisconsin for intentional misrepresentation to induce continued employment." 2001 WI 23 at 30.

24 Wolf v. F&M Bank, 193 Wis. 2d 439, 534 N.W.2d 877 (Ct. App. 1995).

25 Mackenzie, 2000 WI App 48 at 95.

26 Id. at 96. Some courts have refused to allow coemployee tortious interference claims arising out of personnel decisions under any circumstances, even those involving the malicious exchange of information. See, e.g., Sheppard v. Freeman, 79 Cal. Rptr. 2d 13, 17 (Cal. Ct. App. 1998) (holding that "an employee or former employee cannot sue individual employees based on their conduct, including acts or words, relating to personnel actions" because the interest in allowing free speech relative to personnel decisions "without the threat of debilitating litigation outweighs the risk that a few employees will act maliciously and go undetected by their employers").

27 Johnson v. Aetna Life Ins. Co., 158 Wis. 56, 147 N.W.2d 32 (1914).

28 Id. at 60, 147 N.W. at 33.

29 Augustine v. Anti-Defamation League of B'nai B'rith, 75 Wis. 2d 207, 249 N.W.2d 547 (1977).

30 Liebe v. City Finance Co., 98 Wis. 2d 10, 295 N.W.2d 16 (Ct. App. 1980).

31 Id. The court noted that "the mere statement of existing facts, or assembling of information in such a way that the party persuaded recognizes it as a reason for breaking the contract, is not enough [to impose tortious interference liability], so long as the defendant creates no added reason and exerts no other influence or pressure by his conduct." Id.

32 Goerke v. Vojvodich, 67 Wis. 2d 102, 105, 226 N.W.2d 211, 213 (1983).

33 Restatement (Second) of Torts § 772 cmt. c (1979). See also Joseph P. Caulfield & Assocs. v. Litho Prods. Inc., 155 F.2d 883 (7th Cir. 1998).

34 Farr v. Gruber, 950 F.2d 399 (7th Cir. 1991).

35 Hale v. Stoughton Hosp. Ass'n, 126 Wis. 2d 267, 376 N.W.2d 89 (1985).

36 See Qasem v. Kozarek, 716 F.2d 1172 (7th Cir. 1983); Dovin v. Beaver Dam Emergency Medicine S.C., 43 F. Supp. 2d 1027 (E.D. Wis. 1999).

37 See Dovin, 43 F. Supp. 2d at 1034; Olson v. 3M Co., 188 Wis. 2d 25, 523 N.W.2d 578 (Ct. App. 1994).

38 See Wilcox v. Niagara of Wis. Paper Corp., 965 F.2d 355, 365 (7th Cir. 1992).

39 See Foseid v. State Bank of Cross Plains, 197 Wis. 2d 772, 789 n. 10, 541 N.W.2d 203, 210 n. 10 (Ct. App. 1995).

40 Restatement (Second) of Torts § 766 comment r (1979).

41 W. Page Keeton, Prosser and Keeton on The Law of Torts §129, at 988 (5th ed. 1984).

42 See Liebe v. City Finance Co., 98 Wis. 2d 10, 295 N.W.2d 16 (Ct. App. 1980).

43 Porcelli v. Joseph Schlitz Brewing Co., 397 F. Supp. 889, 893 (E.D. Wis. 1975), aff'd, 530 F.2d 980 (7th Cir. 1976).

44 Id.

45 Kaufman v. Grant-Crawford Co-op Oil Co., Dist. IV Ct. App., No. 81-539 (Jan. 26, 1982) (unpublished decision).

46 See Harman v. La Crosse Tribune, 117 Wis. 2d 448, 344 N.W.2d 536 (1984).

47 See Kumpf, supra note 5, 779 F.2d at 1325.

48 Id.

49 Id. (stating "[t]he 'rules of the game' are important in deciding what sorts of acts are privileged.... The rule of this game is that [plaintiff] was an employee at will and had no right to stay on if his board wanted him gone").

50 See Wis. JI-Civil 2780. See also Liebe, supra note 42, 98 Wis. 2d at 5, 295 N.W.2d at 19 (Ct. App. 1980). See also Sparks v. Waukesha Bearings Corp., Dist. II Ct. App., No. 87-1127 (May 4, 1988) (unpublished decision) (noting in Liebe, "we held that the specific privileges set forth at secs. 768-773 control, where applicable, over the factors listed in sec. 767").

51 Restatement (Second) of Torts § 767 (1979).

52 Restatement (Second) of Torts § 767 comment a (1979).

53 2000 WI App 48, 234 Wis. 2d 1, 608 N.W.2d 331.

54 2000 WI App 48 at 65-74.

55 Id. at 69.

56 Id. at 71.

57 Restatement of Torts § 766 (1939).

58 Restatement (Second) of Torts § 766 (1979).

59 Wisconsin Civil Jury Instructions Committee comment to Wis. JI-Civil 2780.

60 Chrysler Corp. v. Lakeshore Commercial Fin. Corp., 389 F. Supp. 1216 (E.D. Wis. 1975).

61 Federal Pants Inc. v. Stocking, 762 F.2d 561 (7th Cir. 1985).

62 See supra note 59.

63 Chrysler, 389 F. Supp. at 1221.

64 Railway Express Agency Inc. v. Super Scale Models Ltd., 934 F.2d 135, 140 (7th Cir. 1991).

65 See Liebe, supra note 42, 98 Wis. 2d at 15, 295 N.W.2d at 19 (Ct. App. 1980).

66 Mendelson, 9 Wis. 2d at 492, 101 N.W.2d at 808.

67 See, e.g., Dan B. Dobbs, Tortious Interference with Contractual Relationships, 34 Ark. L. Rev. 335, 346 (1980); Elisa Masterson White, Comment, Arkansas Tortious Interference Law: A Proposal for Change, 19 U. Ark. Little Rock L.J. 1:81, 81 (1997).

68 W. Page Keeton, Prosser and Keeton on The Law of Torts §129, at 983-84 (5th ed. 1984).

69 See Della Penna v. Toyota Motor Sales, U.S.A., Inc., 902 P.2d 740, 746-47 (Cal. 1995) (stating that "[o]ver the past decade or so, close to a majority of the high courts of American jurisdictions have imported into the economic relations tort ... a rule that requires the plaintiff in such a suit to plead and prove the alleged interference was either 'wrongful,' 'improper,' 'illegal,' 'independently tortious' or some other variant on these formulations"). See also Mason v. Wal-Mart, 333 Ark. 3, 969 S.W.2d 160 (1998) (stating the decision "to require the plaintiff to prove improper conduct in a tortious interference with contract claim has placed Arkansas in line with a majority of jurisdictions in the United States").

70 Mackenzie, 2000 WI App 48, 234 Wis. 2d 1, 608 N.W.2d 331.

71 Id. at 64, 234 Wis. 2d at 48, 608 N.W.2d at 350. See also Dovin, supra note 36, 43 F. Supp. 2d at 1035 (stating "plaintiff has failed to present any evidence upon which a reasonable jury could find that the conduct of [the defendants] improperly interfered with her contract with [the Clinic]") (emphasis added).

72 Mackenzie, 2001 WI 23 at 13.

73 See Bachand v. Connecticut Gen. Life Ins. Co., 101 Wis. 2d 617, 631 n. 3, 305 N.W.2d 149, 155 n. 3 (Ct. App. 1980) (stating "persons in the employment arena, although relatively unrestrained in their contractual relations, may not completely disregard the rights of the persons with whom they deal").