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Case 1 :04-cv-01278-KAJ Document 337 Filed 05/24/2006 Page 1 of 3
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May 24, 2006
BY CM/ECF AND HAND DELIVERY
The Honorable Kent A. Jordan
J. Caleb Boggs Federal Building
844 N. King Street
Room 6325, Lockbox 10
Wilmington, DE 19801
Re: Cryovac Inc. v. Pechiney Plastic Packaging, Inc.
C.A. No. 04-1278-KAJ
Dear Judge Jordan:
We submit this letter on behalf of plaintiff Cryovac, Inc., further to the Court’s directive at
the May 15, 2006, pre-trial conference that each party prepare a three-page submission stating its
position regarding certain disputed aspects of the proposed tortious interference jury instructions.}
In this letter, we address the issue of what Cryovac must prove to establish the causation element of
. . o . . .
tortious interferencef Cryovac submits that the element requires proof that Pech1ney’s conduct as a
whole -- as opposed to an intervening cause or entity -- caused National Beef to breach a require-
ments contractor contracts with Cryovac. See, e. g., Cryovac Proposed Final Jury .[i’lSf/‘Z—lCl°iOl’l 3 .5.3
("You, the jury, must then determine whether Pechiney was responsible for National Beef s failure
to perform the alleged contract or contracts with Cryovac as agreed.”) (D.I. 326 at 65.) Consistent
with applicable law, this instruction would allow the jury to find the causation element satisfied by
proof that Pechiney’s bidding for business with National Beef caused National Beef to breach its
requirement contractor contracts with Cryovac. In contrast, Pechiney submits that Cryovac must
lCryovac is simultaneously submitting a separate three~page brief on the separate disputed issue of what is legally
required to prove the "withoutjustification" element of tortious interference. That is the specific disputed issue that was
raised by the parties at the May 15, 2006, pre-trial conference. The parties thereafter agreed that the issue briefed herein
also impacts presentation of the proof to the jury and should be raised at this time as well.
2The references to "tortious interference" in this submission refer to claims for both tortious interference with contract
and tortious interference with prospective relations.
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Case 1:04-cv-01278-KAJ Document 337 Filed 05/24/2006 Page 2 of 3
YOUNG CONAWAY STARGATT & TAYLOR, LLP
The Honorable Kent A. Jordan
May 24, 2006
Page 2
specifically prove that Pechiney’ s patent injiingenzent was the conduct that caused National Beef to
breach its contract or contracts with Cryovac. See, e. g. Pechiney ’s Instruction No. 16. 1 1.3 (D.l. 323
at 12.) Pechiney’s formulation of the standard is not legally supportable.4
Well-settled case law and the standard model jury instructions establish that: (i) proof of
causation for a claim of tortious interference focuses on defendant’s conduct as a whole (i.e.,
Pechiney’s conduct in bidding for business with National Beef), and not a specific aspect of
defendant’s conduct (such as Pechiney’s infringement of Cryovac’s patent); and (ii) the "causation”
element of the tortious interference claim is separate and distinct from the "without justification"
element ofthe claim. The two elements are not interdependent. We explain below each of these two
legal bases supporting Cryovac’s formulation of the causation standard.
First, the law requires proof that the defendant’s own conduct as opposed to someone or
something else caused the interference with the contract and the resulting loss. The causation
standard ensures that a defendant is not liable for conduct which only indirectly or tangentially leads
to claimed losses, but that the defendant has played a "substantial part" in the losses incurred. See
W. Page Keeton, Prosser and Keeton on The Law of Torts, § 129 at 989 (5th ed. 1984).
The causation standard that Pechiney urges goes far beyond the proper requirement that
defendant’s conduct led to the contractual breaches. For example, the American Bar Association,
Model Jury Instructions: Business Torts Litigation, states the general formulation of the causal
relationship element as follows: "You, the jury, must determine whether the defendant was
responsible for the refusal of [National Beef] to perform the contract with the plaintiff. This means
that, before you can decide in favor of the plaintiff, you must find . . .that, but for the actions of the
defendant, the contract that was not performed would have otherwise been performed? § 1.3.1
(emphasis added). The model instructions continue in this vein, instructing the jury that the t
defendant’s conduct will be the "proximate cause ofthe plaintiff s loss or damage . . . if you find that
it was a substantial factor in causing that loss or damage. [cl. § 1.3.4.d. Neither of these model
instructions relating to causation even alludes to whether or not defendant’s conduct was justified.
Similarly, causation is not addressed in connection with the justification element of the tort in the
model instructions.
Case law also makes clear the proper formulation ofthe causation standard. For example, in
HJ, [nc. v. Int ’l Telephone & Telegraph Corp. , 867 F.2d 1531, 1548 (8th Cir. 1989), the court held
that defendant’s simple act of bidding against plaintiff for a contract (as the evidence will show
Pechiney did here) was sufficient to satisfy the "causation" element for a tortious interference claim.
3 Pechiney argues that the conduct that caused the breach of contract must have been willful and malicious infringement
— not mere infringement. Cryovac disagrees. The parties’ dispute on that issue is addressed in the submission that
Cryovac submits simultaneously herewith. See n. 1, supra.
4 While Pechiney appeared to indicate at the May 15, 2006 pretrial conference its position that Kansas law govems
the tortious interference jury instructions, Pechiney cites Kansas, Missouri and Delaware law in support of its
proposed jury instructions. Pechiney has never asserted that choice of law is determinative ofthe causation element
of tortious interference. Like Pechiney, Cryovac relies on precedent from different jurisdictions insofar as the laws
ofthe jurisdictions potentially applicable here do not materially differ for claims of tortious interference. See eg.,
Memorandum Opinion April 17, 2006 D.l. 306.
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Case 1:04-cv-01278-KAJ Document 337 Filed 05/24/2006 Page 3 of 3
YOUNG CONAWAY STARGATT & TAYLOR, LLP
The Honorable Kent A. Jordan
May 24, 2006
Page 3
Nothing more was required to establish causation. The court concluded that "[t]here is no question
that [defendant’s] lower price induced customers of [plaintiff] to buy hoists from [defendant] .... "
Similarly, in Conoco Inc. v. Inman, 774 F.2d 895 (8th Cir. 1985), the court determined that the
causation element for a claim for tortious interference was satisfied where defendant Conoco had
interfered with plaintiff s long-standing business relationship with a third-party Oil company by
bidding against plaintiff for third·party contracts. Id at 907. Thus, conduct such as "bidding" for a
competitive contract which leads to a breach of a contract with plaintiff can serve as proof of
"causation" for a tortious interference claim.°
Second, whether or not defendant’s conduct was "justified" — including the question of
whether defendant’s conduct included an improper motive, or improper means (such as patent
infringement) -~ is not relevant to the element of causation. Each is a separate and independent
element of the tort. For example, in the HJ, Inc. v. lnt’l Telephone & Telegraph Corp. case
referenced above, even though the court determined that the causation element was satisfied by
defendant’s bidding for a contract competitive to plaintiffs contract, the court explained that it
needed to separately conclude that defendant acted without justification to uphold the defendant’s
liability for tortious interference. This it did, by concluding that defendant’s acts constituted an
“attempted monopolization” which satisfied the without justification element of the tortious
interference claim. 867 F.2d at 1548 (defendant’s conduct was wrongful because conduct was
"intended illegally to restrain competition")(intema1 citation omitted). The court in Conoco Inc. v.
Inman, applied the same legal standard, but reached the opposite result on the facts, concluding that
Conoco was not liable for breach of tortious interference with business relationships because,
although plaintiff had proved causation, it had not proved that "Conoco’ s conduct was not justified."
774 F.2d at 907.
ln sum, Pechiney’s attempt to argue that causation must be linked to only one aspect of
defendant’s conduct, and to combine the "causation" and the “without justification” elements ofthe
prima facie case for tortious interference is not legally supportable. The jury is entitled to conclude
that the causation element of Cryovac’s tortious interference claim will be satisfied if it finds that
Pechiney’s conduct —- here, the bidding for a contract with National Beef -- caused the breach of
Cryovac°s contract or contracts with National Beef.
Elena C. Norman (#4780)
5See also VC. Video, Inc. v. National Video, [nc., 755 F.Supp. 962, 971 (D. Kan. 1990) (causation lacking where no
evidence of defendant’s participation in third party’s decision to breach contract); Tri—Continental Leasing Co. v.
Neidhardt, 540 S.W.2d 210, 215 (Mo. Ct. App. 1976) ("[T]o establish liability in a tortious interference with contract
case, the plaintiff must show that the defendant's acts caused the breach. And we find that other jurisdictions have
characterized the causation element as requiring a showing that the defendant was ‘a moving cause’ in the breach.");
compare Dun & Bradstreet Software Semis. v. Grace Consulting, Inc., 307 F.3d 197, 220 (3d. Cir. 2002) (causation
lacking where plaintiff "failed to produce suthcient evidence to prove that any third parties acted on a letter sent by
[defendant]").
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