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09/16/94 SOAP COMPANY AND ANDY ANDERSON v. ECOLAB

September 16, 1994

THE SOAP COMPANY AND ANDY ANDERSON
v.
ECOLAB, INC., AND MIKE TODD; ECOLAB, INC. AND MIKE TODD V. THE SOAP COMPANY AND ANDY ANDERSON



Appeals from Jefferson Circuit Court. (CV-91-528). Arthur J. Hanes, Jr., Trial Judge.

Released for Publication December 7, 1994.

Kennedy, Hornsby, C. J., and Shores, Ingram, and Cook, JJ., concur. Maddox and Houston, JJ., concur specially in part and Dissent in part.

The opinion of the court was delivered by: Kennedy

KENNEDY, JUSTICE.

These appeals arise from a case involving allegations of tortious interference with business relations. The Soap Company and Andy Anderson appeal from a summary judgment in favor of the defendants, Ecolab, Inc., and Mike Todd. Ecolab and Todd appeal from a summary judgment in favor of the Soap Company and Anderson on Ecolab and Todd's counterclaim.

Andy Anderson is the president and principal shareholder of the Soap Company, an Alabama corporation that manufactures and sells laundry and dishwashing detergents to commercial businesses. Mike Todd is a salesman for Ecolab, which also manufactures and sells commercial detergents.

Before founding the Soap Company, Anderson was a service manager for Ecolab in Birmingham. The Soap Company began as a service company to repair commercial laundry and dishwashing machines. Later, it started manufacturing soap products for these machines. Initially, the Soap Company offered free service on the customer's equipment along with the purchase of detergents. The Soap Company attracted new customers, many of which were former customers of Ecolab.

According to the Soap Company, Ecolab set out on a deliberate and malicious plan to put the Soap Company out of business. The Soap Company presented memorandums written by employees of Ecolab developing a strategy to identify and acquire as many of the Soap Company accounts as possible. The memorandums also detailed a "mission" to remove $200,000 in business from the Soap Company, stating that a business of its size could not survive with such losses.

One of the memorandums was entitled "The Soap Company -- First Assault." In it were statements from an Ecolab manager outlining a strategy:

"Personally, the existence of the Soap Company bothers me. The collective knowledge of all concerned estimates their volume around $800,000 with all but two identifiable accounts being within the State of Alabama.... Mission: To remove a minimum of $200,000 annualized business by October 31st. Any business that size cannot survive business losses of this magnitude. Those dollars directly impact the bottom line and any response by them also takes more dollars off the bottom line. Second step is to sell another $200,000 in annualized business between November 1st and December 31st one account at a time. Goal: Have one less competitor in the Alabama marketplace and a major part of the $800,000 volume carrying forward into 1990 as growth to us."

The memorandum identified one account in particular:

"We have sued [this particular business] twice in the past for payment and we have no assurances that we won't have another collection problem, but it's a risk we have to live with because the loss of a $50,000 account (presumably with money still owed to the Soap Co.) will kill them."

The assistant vice president of national accounts for Ecolab wrote, "We have a situation in Birmingham, Alabama where a group of ex-EL [Ecolab] people are operating a competitor called the Soap Company. We are in a war at this time trying to put them out of business."

Ecolab's version of the facts is as follows: Anderson and his wife began a pattern and practice of entering premises shared by Ecolab and other companies after business hours in order to steal documents from a trash dumpster located on the premises. The type of documents that Anderson retrieved included proposals to specific customers, customer complaints, and price lists. Ecolab claims that the Soap Company was able to obtain a competitive edge in the market by obtaining this information and that Ecolab's actions were in response to the Soap Company's attempt to take Ecolab's customers.

The Soap Company and Anderson sued Ecolab and Todd, alleging tortious interference with business relations and claiming damages for financial loss and mental anguish to Anderson. Ecolab and Todd counterclaimed, alleging that the retrieval of Ecolab's documents from the trash dumpster was trespass, conversion, and a violation of the Alabama Trade Secrets Act, Ala. Code 1975, § 8-27-1 et seq.

The Soap Company and Anderson moved for a summary judgment on both their complaint and the counterclaim. In support of the motion, they presented memorandums and affidavits concerning Ecolab's plan to obtain the Soap Company's accounts. Ecolab and Todd also moved for a summary judgment on the complaint and on the counterclaim, claiming that they were entitled to a "competitor's privilege," which, they say, provides a business justification for interference with the Soap Company's customers. Additionally, Ecolab presented affidavits concerning Anderson's alleged trespass, conversion, and improper use of trade secrets.

The trial court entered a summary judgment in favor of Ecolab and Todd on the tortious interference with business relations claim. It also entered a summary judgment in favor of the Soap Company and Anderson on the trespass, conversion, and trade secrets claim.

Before discussing the appropriateness of the summary judgments entered in this case, this Court must decide whether to adopt the competitor's privilege as a defense to a claim of tortious interference with business relations. The competitor's privilege applies when the contract involved is terminable at will or when the defendant causes a third person not to enter into a prospective contract with another who is his competitor.

This Court has adopted the tort of tortious interference with business relations, based on § 767, Restatement (Second) of Torts (1977). See Gross v. Lowder Realty Better Homes & Gardens, 494 So.2d 590 (Ala. 1986). A companion doctrine to the tort of interference with business relations is the "competitor's privilege." Section 768, Restatement (Second) of Torts, states:

"One who intentionally causes a third person not to enter into a prospective contractual relation with another who is his competitor or not to continue in an existing contract terminable at will does ...


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