holding that a contract clause leaving marketing and promotional decisions to the discretion of book publisher implied a minimal duty to make basic promotional efforts, with decisions on further promotions to be made according to a good faith business judgment standard
How later courts described this case
- holding that a contract clause leaving marketing and promotional decisions to the discretion of book publisher implied a minimal duty to make basic promotional efforts, with decisions on further promotions to be made according to a good faith business judgment standard
- holding the promise to publish the plaintiff’s book implies a good faith effort by the publisher to promote the book
- publisher satisfied duty to promote with good faith when making decisions solely based on “good faith business judgment”
- publisher satisfied duty to act in good faith when making decisions based on “good faith business judgment”
Written by the judges who cited it.
The opinion
PIERCE, Circuit Judge
(concurring):
I am in agreement with the result reached in Judge Winter's able opinion. Thus, I respectfully concur, but I reach the same conclusions on narrower grounds.
My concurrence is directed to that portion of the opinion addressing Zilg’s claim of tortious interference by DuPont. Recognizing that applicable law requires a showing of “intentional and improper” interference with a contract before tort liability may be visited upon a defendant, Restatement (Second) of Torts § 766 (1977), I consider the pivotal facts in this case to be the district court’s findings — fully supported by the record evidence — that, in effect, DuPont’s communications to BOMC concerning alleged inaccuracies in the book were made in good faith and were non-coercive. See Opinion of Judge Brieant at 48-49, 53. In my view, these findings are a “chief factor” in determining whether DuPont’s actions were improper. See Guard-Life Corp. v. S. Parker Hardware Mfg., 50 N.Y.2d 183, 190 , 406 N.E.2d 445, 448 , 428 N.Y.S.2d 628, 632 ; see also Restatement (Second) of Torts § 767(a).
As to the analysis of Restatement (Second) of Torts § 767(e) (interests of society), I believe it suffices to say that because DuPont’s communications to BOMC constituted a good faith, non-coercive pursuit of its interest in protecting its name, DuPont’s conduct was not socially undesirable. Since we find no error as to the pivotal factual findings on this point, measured by the factor enunciated in Restatement § 767(e), those findings clearly weigh in DuPont’s favor on the question of tort liability herein.
Because DuPont’s conduct in this case was found to be undertaken in good faith and was non-coercive, I conclude that DuPont committed no tort by communicating to BOMC its concerns about the accuracy of the book. Moreover, the determination of no contractual breach alone would suggest DuPont’s non-liability for tort, since under New York law, breach of the contract allegedly interfered with is an es *683 sential element of the tort claimed herein. See Jack L. Inselman & Co. v. FNB Financial Co., 41 N.Y.2d 1078, 1080 , 364 N.E.2d 1119, 1120 , 396 N.Y.S.2d 347, 349 (1977).
I concur in the result reached by Judge Winter.