U.S. District Court Judge Indira Talwani recently granted a defendant summary judgment on claims of tortious interference with a contract or advantageous business relationship where the plaintiff failed to demonstrate that it had a known relationship with a third party despite having a history of successful past dealings with it. AnywhereCommerce, Inc. v. Ingenico Inc. involves multiple technology companies navigating the intersection of product development, licensing, a merger, and a bid to win business.
Plaintiffs BBPOS Limited (“BBPOS”) and AnywhereCommerce are a mobile point of sales company and a credit card processing company, respectively. Defendants Ingenico Group SA, Ingenico Inc., and Ingenico Corp. (“Ingenico”) manufacture point-of-sale systems. Non-party ROAM Data, Inc. (“ROAM”) is a mobile payments company and is now an Ingenico subsidiary.
Plaintiff AnywhereCommerce is a vendor of BBPOS’s technology. AnywhereCommerce had a history of winning bids with non-party First Data to supply mobile payment hardware. When Ingenico and AnywhereCommerce both submitted bids to a FirstData request for production, Ingenico won the bid. AnywhereCommerce believed that Ingenico won the bid by improperly pressuring FirstData—or even using trade secrets allegedly stolen from BBPOS (which were also the subject of claims in this lawsuit).
In the aftermath, AnywhereCommerce brought claims against Ingenico for tortious interference with a contract and tortious interference with an advantageous business relationship (sometimes known as tortious interference with a business expectancy) stemming from the lost FirstData bid. For its damages, AnywhereCommerce sought lost sales from the bid and a disgorgement of Ingenico’s gross margins from the winning bid. The court granted Ingenico summary judgment on both varieties of AnywhereCommerce’s tortious interference claims. AnywhereCommerce’s interference with a contract claim failed because it identified no existing contract; it had only submitted a bid for the contract and had not been awarded the contract.
AnywhereCommerce was then left with its tortious interference with an advantageous business relationship claim. To prevail, it needed to show that: (1) it had a known advantageous relationship; (2) Ingenico deliberately interfered with that relationship; (3) Ingenico interfered with an improper motive or by improper means; and (4) AnywhereCommerce suffered economic harm as a result of the interference.
The court found that AnywhereCommerce’s claim failed on at least two elements: (1) the claimed relationship; and (2) the motive and means of the alleged interference. First, the RFP (request for proposal) bid on which the claim was based was not itself a sufficient relationship to support the claim. This claim is a natural cousin of a tortious interference with a contract claim. So, it should be no surprise that the “advantageous business relationship” required for this claim must be sufficiently definite that it is reasonably likely to give rise to a real business relationship—for example, a contract. But a bid responding to an RFP is no such relationship. As the court noted, it was not reasonably likely that AnywhereCommerce would be awarded that bid; the lowest bid would win, and AnywhereCommerce did not know whether it was the lowest bidder.
Further, multiple companies submitted bids—including the defendant. As such, AnywhereCommerce’s previous dealings with FirstData could not be the basis of its claim (they were not interfered with) and did not make the bid award more likely because the award went to the lowest bid. The likelihood of AnywhereCommerce’s relationship developing with FirstData into a contract was merely speculative. The court ultimately determined that AnywhereCommerce failed to offer any evidence from which “a jury could find that [it] had a relationship with First Data that was reasonably likely to develop.” Unfortunately for AnywhereCommerce, its relationships with First Data are independent of one another, and only exist following one (successful) bid at a time.
Second, AnywhereCommerce could not prove that Ingenico undertook any improper act to interfere with the development of its hoped-for contract with FirstData. AnywhereCommerce expressed suspicions that Ingenico placed undue pressures on FirstData to not accept AnywhereCommerce’s bid. However, it did not offer any proof of actual interference or improper means or motive by Ingenico to secure the RFP. AnywhereCommerce failed to show that Ingenico had done anything but supply a superior bid—which is neither interference nor wrongful.
In the end, AnywhereCommerce’s tortious interference claims failed because: (a) it had no contract; (b) it had no existing business relationship that was reasonably likely to develop into a contract; and (c) it had no proof that the defendant interfered with the development of its business relationship. The court’s summary judgment decision was not difficult: it was a clear win for the defense.
The case also involves several other claims and counterclaims stemming largely from patent licenses and trade secrets. But these tortious interference claims provide a nice study of what one needs to pursue those business torts. The court’s summary judgment order is available at AnywhereCommerce, Inc. v. Ingenico Inc., No. 1:19-CV-11457-IT, 2023 WL 2694043 (D. Mass. Mar. 29, 2023).