Amway v P&G
Order and Partial Judgment (cont'd)
IV.
Amway has filed a one count complaint alleging one claim of tortious interference with contract and with actual and prospective business relations. The parties agree that Michigan law controls the substantive aspects of this case. The elements of a tortious interference claim are: (1) the existence of a valid business relationship or expectancy; (2) knowledge of the relationship or expectancy on the part of the interferer; (3) an intentional or improper interference with the relationship that induces or causes a breach or termination of the relationship or expectancy; and (4) resultant damage to the party whose relationship or expectancy has been disrupted. DXS, Inc. v. Siemens Medical Systems, Inc., 100 F.3d 462, 469 (6th Cir. 1996) (citing cases). To establish the "improper interference" element, Amway must prove "the intentional doing of a per se wrongful act or the doing of a lawful act with malice and unjustified in law for the purpose of invading the contractual rights or business relationship of another." Tata Consultancy Services, a Div. of Tata Sons Ltd. v. Systems Intern. Inc., 31 F.3d 416, 422 (6th Cir. 1994) (quoting Wood v, Herndon & Herndon Investigations, Inc., 186 Mich.App. 495, 499-500, 465 N.W.2d 5. 8 (1990)). The second prong of this test requires consideration of several factors including: "(1) the nature of the defendant's conduct, (2) the nature of the plaintiff 's contractual interest, (3) the social utility of the plaintiffs and the defendant's respective interests. and (4) the proximity of the defendant's conduct to the interference." Jim-Bob. Inc. v, Mehling, 178 Mich. App. 71, 97, 443 N.W.2d 451 1989).
Amway contends that its allegations of improper interference come under both prongs of the test. It is alleging both defamation and the doing of lawful acts with a wrongful motive.
Amway claims that P&G and Dinsmore provided Schwartz with numerous documents from the Utah case, a copy of the third amended complaint in the Texas case, copies of two internal Amway memoranda that were attached to pleadings in the Cairns case, approximately three inches of pleadings from the Setzer case, and transcripts of Amway motivational tapes that Dinsmore produced from tapes that Schwartz provided to Dinsmore. Although Amway alleges that some of the documents Dinsmore turned over to Schwartz were confidential documents filed under seal in the Utah case, Amway has not alleged or shown that any of those documents were posted on the web or caused it injury The only document from the Utah case that was posted on the web was the third amended complaint. (7)
Amway does not contend that all of the documents that were posted on the Schwartz website caused it injury. In a discovery order dated November 23, 1999, (Docket # 142), the Magistrate Judge required Amway to state "the words and source of each and every statement uttered by P&G or by any person allegedly acting on behalf of P&G that Amway contends was false, misleading or derogatory, or interfered with a current or prospective business relationship." In response to this order Amway identified 99 statements on the Schwartz website that it considers defamatory. Of these 99 statements, only 18 statements are attributed to information supplied by P&G and Dinsmore. These 18 statements include 16 paragraphs from P&G's Texas federal court complaint against Amway and two statements from the Setzer complaint. See Addendum A to P&G's brief in support of summary judgment. The 16 allegations from the Texas complaint relate to allegations that Amway is a pyramid scheme or to allegations that Amway violated the RICO Act. The two statements from the Setzer case relate to allegations that Amway violated the RICO act. Amway does not dispute P&G and Dinsmore's characterization of the number and source of the allegedly defamatory statements that it attributes to P&G and Dinsmore. Based upon Amway's designation of the statements it relies on in support of its interference claim. the only documents at issue for this Court are the third amended Texas complaint and the Setzer documents.
V.
Amway's claims against P&G and Dinsmore are based in large part on Amway's contention that P&G and Dinsmore should be held responsible for the unfair and misleading manner in which the public documents from the Texas case and the Setzer case were posted on Schwartz's website. Amway contends that P&G and Dinsmore can be held liable for Schwartz's actions because there was a conspiracy between P&G, Dinsmore and Schwartz to attack Amway.
Michigan law defines a civil conspiracy as a combination of two or more persons, by some concerted action, to accomplish a criminal or unlawful purpose, or to accomplish a lawful purpose by criminal or unlawful means. Fenestra, Inc. v. Gulf American Land Corp., 377 Mich.565, 593, 41N.W.2d36(1966); Feaheny v. Caldwell, 75 Mich. App.291,307, 437 N. W.2d 358,. 365 (1989): Mays v. Three Rivers Rubber Corp., 35 Mich. App. 42, 48, 352 N.W.2d339, 341 (1984).
The agreement. or preconceived plan. to do the unlawful act is the thing which must be proved. Direct proof of agreement is not required, however, nor is it necessary that a formal agreement be proven. It is sufficient if the circumstances, acts and conduct of the parties establish an agreement in fact. Furthermore, conspiracy may be established by circumstantial evidence and may be based on inference.
Temborius v. Slatkin, 157 Mich. App. 587, 600, 403 N.W.2d 821 (1986). Once a conspiracy is established, whatever was done in pursuance of it by one of the conspirators is to be considered as the act of all. Brown v. Brown, 338 Mich. 492, 503, 61 N.W.2d656 (1953). The Sixth Circuit has held that summary judgment was appropriate on a civil conspiracy claim where the plaintiffs "failed to present any evidence of a common design or concert of actions among the alleged conspirators," Menuskin v. Williams, 145 F.3d 755. 770 (6th Cir. 1998) (applying parallel Tennessee law).
In support of its conspiracy allegations, Amway points to evidence that P&G and Schwartz had a common goal of harming Amway; that P&G and Dinsmore provided their inflammatory complaints knowing he would repost them; that they asked Schwartz to collect motivational tapes for them; that the Internet confederacy destroyed e-mail evidence just as P&G had done in Utah; that P&G and Dinsmore met, spoke with, or received e-mail or other correspondence from some members of the confederacy; and that Schwartz shared the information he received from Dinsmore with his internet confederates.(8)
(7) Robert Heuck II Aff. 16.
(8) Amway brief in opposition to motions for summary judgment at 46-47.
