Most write-ups treat tortious interference as a side claim, something you tack onto a breach-of-contract count so you can reach a defendant with deeper pockets. That sells it short in one direction and oversells it in the other.
It sells it short because in Minnesota a winning interference claim can carry the attorney fees of the underlying contract lawsuit as damages, in a state that otherwise follows the American rule. In Kallok v. Medtronic, Inc., 573 N.W.2d 356 (Minn. 1998) (No. C2-96-1598), that produced a $93,852.92 judgment made up entirely of the fees and expenses the plaintiff had spent suing somebody else.
It oversells it because the whole claim usually turns on one element, justification. And in Sysdyne Corp. v. Rousslang, 860 N.W.2d 347 (Minn. 2015) (No. A13-0898), the defendant beat it with an email exchange and billing records showing 0.4 hours of attorney review and 0.3 hours on the phone.
Forty-two minutes of legal advice. The advice turned out to be wrong. It was enough.
That lopsidedness is what this piece is about. Here’s what I want in front of me on either side of one of these cases, straight from the primary sources.
Two torts, and the elements aren’t the same
Minnesota recognizes two distinct claims, and they get lumped into one count, sloppily and often.
Interference with contract has five elements. They’re stated in Furlev Sales & Associates, Inc. v. North American Automotive Warehouse, Inc., 325 N.W.2d 20, 25 (Minn. 1982), and every leading case since has quoted them:
(1) the existence of a contract; (2) the alleged wrongdoer’s knowledge of the contract; (3) intentional procurement of its breach; (4) without justification; and (5) damages.
Kjesbo v. Ricks, 517 N.W.2d 585, 588 (Minn. 1994) (Nos. C9-93-160, C5-93-365) (quoting Furlev Sales); Sysdyne, 860 N.W.2d at 351 (same).
Interference with prospective economic advantage went a century in Minnesota without anybody listing its elements. Then, in Gieseke ex rel. Diversified Water Diversion, Inc. v. IDCA, Inc., 844 N.W.2d 210 (Minn. 2014) (No. A12-0713), the supreme court supplied them:
The existence of a reasonable expectation of economic advantage;
Defendant’s knowledge of that expectation of economic advantage;
That defendant intentionally interfered with plaintiff’s reasonable expectation of economic advantage, and the intentional interference is either independently tortious or in violation of a state or federal statute or regulation;
That in the absence of the wrongful act of defendant, it is reasonably probable that plaintiff would have realized his economic advantage or benefit; and
That plaintiff sustained damages.
(Emphasis added.)
Put them side by side and the gap jumps out. The contract tort has no wrongfulness element at all. Interference plus breach plus damages makes a prima facie case, and then the defendant has to prove justification. The prospective-advantage tort makes the plaintiff prove, as part of its own case, that the interference was independently tortious or unlawful.
| Interference with contract | Interference with prospective advantage | |
|---|---|---|
| Interest protected | “[T]he security of contractual relationships” | “[T]he reasonable expectation of economic advantage” |
| Wrongfulness | Not a plaintiff’s element; absence of justification is | Plaintiff must prove conduct independently tortious or in violation of a statute or regulation |
| Who proves justification | Defendant | Not a separate defense in the same posture |
| Relationship required | An existing contract | A reasonable expectation with a specifically identified third party |
Gieseke, 844 N.W.2d at 219 (elements). Source for the “interest protected” language: Gieseke, 844 N.W.2d at 218, quoting the court’s earlier formulation.
Why prospective-advantage claims die
Two separate reasons, and both go back to Gieseke.
The first is the wrongfulness requirement. It’s there because the court decided ordinary hard competition shouldn’t be a tort. Gieseke spends real time on it, noting that “the law affords greater protection to existing contractual relationships[] than to prospective business relationships,” and that Minnesota has “never allowed a recovery for negligent wrongful interference with a business relationship.” Then the limiting rule:
To ensure that fair competition is not chilled, a claim for tortious interference with prospective economic advantage must be limited to those circumstances in which the interference is intentional and independently tortious or unlawful, rather than merely unfair.
Gieseke, 844 N.W.2d at 218 (emphasis added). The court added: “The requirement of independently tortious or unlawful conduct adequately apprises potential defendants of the conduct that will subject them to liability, but ensures that businesses may rigorously compete with one another without fear of liability, as long as they do so lawfully.”
That turns straight into a pleading rule. A complaint that says only that a competitor took the plaintiff’s expected business, however aggressively, isn’t thin. It’s missing an element. The pleading has to name the independent wrong: defamation, trade secret misappropriation, fraud, a statutory violation. That’s why prospective-advantage claims nearly always show up attached to a Minnesota Uniform Trade Secrets Act claim or a defamation claim. The companion claim is supplying element three.
The second reason is element one, and it kills more claims than the first. The plaintiff in Gieseke had won a $220,000 advisory-jury verdict. The supreme court vacated it. The problem wasn’t whether the defendant’s conduct was permissible. The plaintiff never identified anybody:
We conclude that to prove the defendant tortiously interfered with plaintiff’s prospective economic advantage, a plaintiff must specifically identify a third party with whom the plaintiff had a reasonable probability of a future economic relationship. Thus, a plaintiff’s projection of future business with unidentified customers, without more, is insufficient as a matter of law.
Gieseke, 844 N.W.2d at 221 (emphasis added).
The plaintiff’s theory was that it “had enjoyed business in the past from approximately 100 customers per year, and that it expected that level of business to continue in the future.” Not good enough. The plaintiff “failed to identify a specific existing or prospective third party for whom it reasonably expected to do future drain tile or warranty work.” The court also wouldn’t let reputational harm stand in: “general damage to [the plaintiff’s] business reputation is insufficient to establish that an expectation of economic advantage was damaged.” Id. at 222.
So a lost-profits model built on historical volume isn’t evidence of a reasonable expectation of economic advantage in this state. Discovery has to produce names (customers, prospects, deals), and the expert damages work has to be built on those names. A trend line won’t do it.
Justification is the defendant’s burden
This is the biggest allocation in the contract tort, and lawyers get it backwards all the time.
The burden of proving justification is on the defendants.
Kjesbo, 517 N.W.2d at 588, citing Royal Realty Co. v. Levin, 244 Minn. 288, 295 (1955) (No. 36,416). Sysdyne repeats it: “The burden of proving that interference with a contract was justified is on the defendant.” 860 N.W.2d at 351.
Justification is also normally a fact question. “Whether the interference is justified is normally a question of fact.” Sysdyne, 860 N.W.2d at 351, citing Kjesbo, 517 N.W.2d at 588. That’s why these claims survive summary judgment more often than defendants expect.
The standard is reasonableness. There’s no checklist: “[T]he test is what is reasonable conduct under the circumstances.” Kjesbo, 517 N.W.2d at 588. One recognized kind of justification comes from the Restatement: “There is no wrongful interference with a contract where one asserts ‘in good faith a legally protected interest of his own … believ[ing] that his interest may otherwise be impaired or destroyed by the performance of the contract or transaction.’” Kjesbo, 517 N.W.2d at 588 (quoting Restatement (Second) of Torts § 773 (1979)). And Sysdyne made clear that category isn’t the outer edge: “we have not indicated that interference with a contract is justified only when a defendant asserts in good faith a legally protected interest that would be impaired or destroyed by performance of the contract.” 860 N.W.2d at 352.
Kjesbo itself shows the limit. The defendants used a technically compliant conduit deed to route farmland to a financier through a family member, which defeated the plaintiff’s purchase contract. The court held that even assuming the intention they claimed, “the use of the conduit deed to Randy Ricks as the strawman was improper and impermissible under the statute, so that, as a matter of law, there was no justification for respondents’ interference with the Kjesbo contract.” Technically complying with a statute isn’t justification when the arrangement defeats the statute’s purpose.
Forty-two minutes of wrong advice was enough
Xigent hired Rousslang, a Sysdyne employee bound by a noncompete. Before it did, Xigent’s president sent the offer letter and employment agreement to outside counsel, who advised that the agreement was overbroad and unenforceable. That advice was wrong. The trial court later held the noncompete enforceable except as to Rousslang’s pre-existing clients and entered a $158,240 breach-of-contract judgment against Rousslang.
The supreme court affirmed judgment for Xigent on the interference claim anyway:
[W]e conclude that, under Kallok v. Medtronic, Inc., 573 N.W.2d 356 (Minn. 1998), the justification defense to tortious interference with contract may encompass reasonable reliance on advice of counsel.
Sysdyne, 860 N.W.2d at 354.
Now look at what was actually in the record. Xigent produced an email exchange with counsel; billing records showing “0.4 hours for review of the letter and agreement and 0.3 hours for a telephone conference … regarding ‘noncompete issues’”; and testimony from its president that he regarded the lawyer as a noncompete expert who’d reviewed such agreements for the company for ten to twelve years. Xigent didn’t describe Sysdyne’s business to counsel. Nothing in the record documented the substance or the legal basis of the advice. The court held that was enough and rejected the argument that more is required:
[A] defendant is not required to establish the legal analysis underlying an attorney’s advice in order to prove justification.
Sysdyne, 860 N.W.2d at 354. And: “the fact that legal advice was verbal and undocumented may be relevant to the reasonableness of the defendant’s reliance on the advice, but does not necessarily preclude the possibility that the facts of a particular case may establish justification.”
None of that makes a phone call to a lawyer an immunity. The court said so in a footnote: “Kallok does not imply that reliance on advice of counsel per se justifies tortious interference with contract; the consultation with counsel cannot be ‘infirm,’ as it was in Kallok.”
In Kallok, Angeion also went to outside counsel before hiring a Medtronic executive who had signed noncompetes. It lost anyway:
Even though Angeion consulted with its outside counsel about Kallok’s noncompete agreements, Angeion did not fully inform its outside counsel about Kallok’s background at Medtronic or the intricacies of his noncompete agreements. … Angeion may not rely upon an infirm consultation with counsel and the resulting advice as a justification for its action. We conclude Angeion did not utilize a reasonable inquiry in ascertaining whether Kallok’s noncompete agreements with Medtronic prevented him from being employed by Angeion.
Kallok, 573 N.W.2d at 362 (emphasis added). Sysdyne distinguished it squarely on the record: in Kallok, the defendant “not only failed to provide relevant information to counsel regarding the employee’s position and access to confidential information, but actually provided incorrect information,” and outside counsel “was not provided with copies of the relevant noncompete agreements.” 860 N.W.2d at 353.
So the line is disclosure. Xigent gave its lawyer the actual contract and an accurate description of the work, spent forty-two minutes, and won. Angeion gave its lawyer bad information and no contracts, spent more, and lost. The defense turns on what you told counsel, never on what you paid.
When I advise the hiring side of one of these deals, the instruction is four sentences long: send the actual agreement, describe the actual job, describe the actual access to confidential information, and keep the email. That file is the defense.
You can’t interfere with your own contract
The general rule is that a party cannot interfere with its own contract.
Nordling v. Northern States Power Co., 478 N.W.2d 498, 505 (Minn. 1991) (Nos. C7-90-1499, CX-90-1500), citing Bouten v. Richard Miller Homes, Inc., 321 N.W.2d 895, 900–01 (Minn. 1982). It matters most in the employment cases, where the fight is over the company’s own officers and managers.
Nordling explains why the rule has to exist: “If a corporation’s officer or agent acting pursuant to his company duties terminates or causes to be terminated an employee, the actions are those of the corporation; the employee’s dispute is with the company employer for breach of contract, not the agent individually for a tort. To allow the officer or agent to be sued and to be personally liable would chill corporate personnel from performing their duties and would be contrary to the limited liability accorded incorporation.”
Then it lays out the privilege and how you lose it:
[A] company officer, agent or employee is privileged to interfere with or cause a breach of another employee’s employment contract with the company, if that person acts in good faith, whether competently or not, believing that his actions are in furtherance of the company’s business. This privilege may be lost, however, if the defendant’s actions are predominantly motivated by malice and bad faith, that is, by personal ill-will, spite, hostility, or a deliberate intent to harm the plaintiff employee.
Nordling, 478 N.W.2d at 507 (emphasis added).
Three details decide these cases. One is the phrase “[W]hether competently or not.” A manager’s incompetence is no way around the privilege. Only motive is. The malice also has to be actual malice, not the older and looser definition; Nordling expressly departed from the general rule that “malice” in interference cases means only wrongful conduct without justification: “we conclude, when motive or malice becomes relevant on the issue of improper interference, that this malice be actual malice.” And the plaintiff carries that burden: “The burden of proving actual malice is on the plaintiff.” Nordling, 478 N.W.2d at 507. Notice the flip. On the contract tort generally, the defendant carries justification. Where the defendant is a co-employee asserting the Nordling privilege, the plaintiff has to prove actual malice.
Nordling also declined to decide “[w]hether a tortious interference claim against a co-employee — i.e., an employee without any supervisory role over plaintiff — might ever lie.” That question’s still open.
What the claim is actually worth
This is the part that should change which cases you take.
Minnesota follows the American rule, which “prevents a party from shifting its attorney fees to its adversary without a specific contract or statutory authorization.” But Kallok applied the third-party litigation exception:
[T]he third-party litigation exception to the American rule permits a court to award attorney fees as damages if the defendant’s tortious act thrusts or projects the plaintiff into litigation with a third party.
Kallok, 573 N.W.2d at 363.
Run an interference case through that and it lines right up. Angeion’s interference forced Medtronic into a lawsuit against its own former employee to enforce the noncompete, so the fees of that suit became the damages in the interference claim:
It is undeniable that but for Angeion’s tortious actions, Medtronic would not have had to enforce its valid noncompete agreements with Kallok. … We hold that the district court properly applied the third-party exception to the American rule and correctly allowed Medtronic to recover from Angeion the attorney fees and other expenses it incurred in enforcing its noncompete agreements with Kallok.
Kallok, 573 N.W.2d at 363.
The court was careful with the math. The trial court found total fees and expenses of $111,221.30. It took off 10 percent for the part attributable to the interference claim itself, which isn’t recoverable because it’s ordinary first-party litigation, and then another $6,246.25 for fees incurred before the employee started work at Angeion. The recoverable figure was $93,852.92.
That math tells you how to build the claim. Segregate the time: fees spent litigating the interference claim against the interferer aren’t recoverable, fees spent litigating against the third party are, and bills that don’t separate them get cut exactly the way they were in Kallok. Watch the timing on causation, because fees incurred before the interference happened weren’t caused by it. And understand that the interference claim can be worth more than the contract claim. In Kallok the recoverable fees exceeded what most noncompete breaches produce in provable lost profits. The court also noted it “has always been exceedingly cautious when awarding attorney fees as damages.” The exception is real. It isn’t casual.
Kallok also settled the underlying question that had split the lower courts: “if a noncompete agreement is deemed valid and if the elements of tortious interference are established, interference with the noncompete agreement by a third party is a tort for which damages are recoverable.” 573 N.W.2d at 362.
What survives the noncompete ban
This is where lawyers are likeliest to reason from a stale premise, so read the dates.
Minn. Stat. § 181.988, subd. 2(a) provides: “Any covenant not to compete contained in a contract or agreement is void and unenforceable.” The statute was enacted by Laws 2023, ch. 53, art. 6, § 1, whose effective-date clause reads: “This section is effective July 1, 2023, and applies to contracts and agreements entered into on or after that date.”
So the classic Kallok/Sysdyne fact pattern, where a competitor hires away an employee with a noncompete and the employer sues the competitor for interference, is gone for any noncompete signed on or after July 1, 2023. There’s no valid contract to interfere with, and element one fails on the pleadings. Our guide to the Minnesota noncompete ban covers the statute’s scope and its two exceptions (sale of a business; anticipation of dissolution).
But read what § 181.988, subd. 1(a), excludes from the definition:
A covenant not to compete does not include a nondisclosure agreement, or agreement designed to protect trade secrets or confidential information. A covenant not to compete does not include a nonsolicitation agreement, or agreement restricting the ability to use client or contact lists, or solicit customers of the employer.
Those agreements are still enforceable, which means they’re still contracts a third party can tortiously interfere with. The tort still works in employment cases. It lost one kind of underlying contract. What’s left (nondisclosure, nonsolicitation, confidentiality, and customer-list restrictions) is the subject of our piece on alternatives to the noncompete.
On the prospective-advantage side, § 181.988 arguably widens the field for element three of Gieseke, since conduct violating a state statute satisfies the wrongfulness requirement on its face.
What I do on each side of the case
Bringing one: plead the two torts separately, with separate elements, because a combined count invites a motion aimed at the weaker one. On a prospective-advantage claim, name the third parties in the complaint if you can and in discovery if you can’t. Gieseke is a merits rule, not just a pleading rule, and a jury verdict got vacated over it. Spell out the independent wrong for element three and never lean on the interference itself. If the interference forced you into a lawsuit against somebody else, plead the Kallok measure of damages from day one and set up your billing to match. And where the defendant is an officer or manager of your own employer, expect the Nordling privilege and plan the actual-malice proof (personal ill-will, spite, hostility, or deliberate intent to harm) before you file anything.
Defending one: justification is your burden, so build the record as you go instead of scrambling for it in discovery. If you’re hiring around a restrictive covenant, send counsel the actual agreement and an accurate description of the job and the employee’s access to confidential information. Sysdyne shows the consultation doesn’t have to be elaborate. Kallok shows it has to be candid. Keep the email and the billing entry, because in Sysdyne those two documents were most of the defense. And on a prospective-advantage claim, move early on element one. If the plaintiff can’t name a third party, the claim fails as a matter of law, and that motion is cheaper than the discovery it replaces.
Madgett Law, LLC
Madgett Law, LLC handles Minnesota business tort litigation, including tortious interference with contract and with prospective economic advantage. That means companies whose contracts or customer relationships have been raided, and businesses and executives defending interference claims that come out of competitive hiring. I assess these claims on the elements that actually decide them: identifiable third parties, independently wrongful conduct, and the justification record. Call 612-470-6529 or send us a message.
Sources: Furlev Sales & Associates, Inc. v. North American Automotive Warehouse, Inc., 325 N.W.2d 20, 25 (Minn. 1982) (Nos. 81-1025, 81-1050) (five elements of interference with contract). Kjesbo v. Ricks, 517 N.W.2d 585, 588 (Minn. 1994) (Nos. C9-93-160, C5-93-365) (elements; justification ordinarily a fact question; “the test is what is reasonable conduct under the circumstances”; burden of proving justification on the defendant, citing Royal Realty Co. v. Levin, 244 Minn. 288, 295 (1955) (No. 36,416); Restatement (Second) of Torts § 773 good-faith legally protected interest; and holding at 589 that a conduit deed technically complying with Minn. Stat. § 500.24 did not justify interference). Gieseke ex rel. Diversified Water Diversion, Inc. v. IDCA, Inc., 844 N.W.2d 210, 217–22 (Minn. 2014) (No. A12-0713) (at 217, reaffirming the claim’s viability; at 218, the interests protected by the two torts and the requirement that the interference be independently tortious or in violation of a state or federal statute or regulation “rather than merely unfair”; at 219, the five elements; at 221, the requirement that the plaintiff specifically identify a third party and the insufficiency of projections from unidentified customers; at 222, the insufficiency of general reputational damage). Kallok v. Medtronic, Inc., 573 N.W.2d 356, 360–63 (Minn. 1998) (No. C2-96-1598) (at 360, the damages computation of $111,221.30 less 10 percent less $6,246.25 = $93,852.92; at 362, interference with a valid noncompete is a tort for which damages are recoverable, and “Angeion may not rely upon an infirm consultation with counsel”; at 363, the third-party litigation exception to the American rule and its application). Sysdyne Corp. v. Rousslang, 860 N.W.2d 347, 350–54 (Minn. 2015) (No. A13-0898) (at 350, the 0.4 and 0.3 hours of attorney time in the record; at 351, the five elements and the defendant’s burden on justification; at 352, that justification is not limited to the Restatement § 773 category; at 353, distinguishing Kallok on disclosure; at 354, that the justification defense may encompass reasonable reliance on advice of counsel, that a defendant need not establish the legal analysis underlying the advice, and that verbal and undocumented advice is not automatically disqualifying; footnote 3, that the consultation cannot be “infirm”). Nordling v. Northern States Power Co., 478 N.W.2d 498, 505–07 (Minn. 1991) (Nos. C7-90-1499, CX-90-1500) (a party cannot interfere with its own contract, citing Bouten v. Richard Miller Homes, Inc., 321 N.W.2d 895, 900–01 (Minn. 1982); company officer/agent privilege where acting in good faith “whether competently or not”; loss of privilege on predominant motivation by malice and bad faith; actual-malice standard; plaintiff’s burden; question of a nonsupervisory co-employee left open). Minn. Stat. § 181.988, subd. 1(a) (definition of “covenant not to compete” and its exclusions for nondisclosure, trade secret, confidential information, nonsolicitation, and client-list agreements) and subd. 2(a) (covenants not to compete void and unenforceable), enacted by Laws 2023, ch. 53, art. 6, § 1 (“This section is effective July 1, 2023, and applies to contracts and agreements entered into on or after that date”). Minnesota case text from the Caselaw Access Project archive (static.case.law); statutes and session laws from the Minnesota Office of the Revisor of Statutes.
This article is general legal information about Minnesota law. It is not legal advice, it does not create an attorney–client relationship, and it does not promise or imply any particular outcome. Whether a particular course of conduct is justified, and what a particular interference claim is worth, depends entirely on the facts. Case law develops; verify current authority before relying on any proposition here.