Billboard Insider recently published an article on the 2009 Nebraska Supreme Court case of Lamar Co vs City of Fremont, along with the follow up comments from California attorney Richard Hamlin. Among the several interesting legal issues in the case was Lamar’s allegation of tortious interference, which basically consisted of “lease jumping” by a competitor, Victor Outdoor. Because Lamar’s lessor had already timely and properly terminated the lease, the trial court granted a summary judgment that Lamar had no claim for “tortious interference with business relationship or expectancy” under Nebraska law.

The Nebraska Supreme Court affirmed, explaining that “in order to establish a claim for tortious interference with a business relationship or expectancy, a claimant must prove (1) the existence of a valid business relationship or expectancy, (2) knowledge by the interferer of the relationship or expectancy, (3) an unjustified intentional act of interference on the part of the interferer, (4) proof that the interference cause the harm sustained, and (5) damage to the party whose relationship or expectancy was disrupted.” Attorney Hamlin added that under California law an actual valid contract must exist between the plaintiff and a third party, not a mere relationship or expectancy. The same requirement exists in Texas and many other states.

Regardless, the Court in Lamar vs Fremont held that “an intentional, but justified, act of interference will not subject the interferer to liability.” The Court went on to reject Lamar’s claim based on “competitor privilege,” stating “(1) one is privileged purposely to cause a third person not to enter into or continue a business relation with a competitor of the actor if (a) the relation concerns a matter involved in the competition between the actor and the competitor, and (b) the actor does not employ improper means, and (c) the actor does not intend thereby to create or continue an illegal restraint of competition, and (d) the actor’s purpose is to at least in part to advance his interest in his competition with the other.” The Court recognized, therefore, that since Lamar’s lease was terminated by its terms, its competitor Victor was privileged to enter a new lease with the lessor.

Nebraska, California, Texas, and virtually every State requires some degree of culpability by the interferer in an unjustified, improper, and unprivileged act. And, free and fair competition will not meet such a standard. In fact, the Court noted that “the fact that hatred or desire for revenge was part of the reason is insufficient to make interference improper if the conduct is directed to at least in part to advancement of a party’s own competitive interest and social benefits arising therefrom.”

The billboard business is certainly competitive, and often a bare knuckles battle, especially when government regulations are restrictive and available conforming sites are scarce. I’ve actually been surprised, very pleasantly, by how collegial and friendly all of the attendees behave toward one another at IBO and OAAA conferences. Perhaps y’all do so in recognition that one should compete hard, but fairly, in business, and to put any personal animosity aside when dealing with collogues and competitors.  I try to observe these ideals in my law practice, but in fairness, I bet it’s easier to get along with billboard guys than lawyers. Anyway, congratulations, and keep up the good work!

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