Ken & Jesse,
    Thank you for your continuous stream of information.  It is very helpful to have your input in an area where many of us are not well versed.
    In response to the March 3, 2016 news letter, I was wondering if you could clarify some things regarding tortious interference with contract.  I would like to make sure that us legitimate dealers are not part of that problem.
    What is the wrong way for a dealer to approach someone who has an existing security system?  Is initiating a conversation with a business or home owner automatically tortious interference with contract?  I would assume that if someone approaches an installer that would not be tortious interference with contract because the initial contact was not initiated by the dealer.
    Thank you for your input.
    There are two related potential causes of action, tortious interference of contract and inducing breach of contract.  Maybe they are the same.  The first hurtle establishing the wrongdoing is determining that there actually is a contract that was caused to be breached.  As it relates to the alarm business, a contract that is cancelable or expired is not going to be the basis of a tortious interference claim; that subscriber had a right to cancel at will.  Arguing that historically alarm subscribers will continue their service and continue paying, even without being bound by contract, is most likely going to be a uphill battle not worth pursuing.  Few RMR payments are going to be worth challenging.  
    There will be times that it makes sense to pursue a tortious interference claim. Just ask Robert Kleinman of AFA, a litigation connoisseur.  Take an account from AFA and expect to be sued.  I know Robert's position is that talking to a subscriber you know is under contract with AFA and offering that subscriber a cheaper price, is enough to get you sued.  I don't think that's enough, but that's what makes lawsuits.
    In my view a subscriber has every right to decide it will terminate its relationship with its existing alarm company, even if that means breaching the contract, and to do business with another alarm company.  The new alarm company is not, in my opinion, under any obligation to determine the contract obligations of the subscriber with the existing alarm company.  What the new alarm company may want to consider, especially if the account is owned by AFA, is whether the subscriber owns that equipment, because if it's owned by the existing alarm company then the new alarm company can't use it; can't connect to it and risks a lawsuit for conversion if it does.  
    But assuming the subscriber owns the equipment, a new alarm company can come in invited by the subscriber to offer its services.  Even if not invited, can the alarm company solicit the subscriber?  Well, that's where the possibility of crossing the line comes in.  If you are looking for alarm stickers, walking in and disparaging the existing alarm company and offering your services you've crossed the line.  Obviously using any deceptive tactics is also going to subject you to liability if sued.   
    Rule of thumb.  If you want to protect your subscriber accounts, then:

  • have an ironclad contract, which you get at www.alarmcontracts.com and keep them in original term.
  • be aggressive pursuing subscribers who breach - send them to Kirschenbaum & Kirschenbaum for collection.
  • if you think you're being targeted by another alarm company, sue that company.

    If you want to poach another alarm company's subscribers without blatantly engaging in tortious conduct:

  • do not use the other alarm company's documentation or confidential subscriber information
  • do not solicit a subscriber, inquire about its current alarm services, including pricing, and offer to beat it
  • do not disparage the existing alarm company
  • obviously do not use deceptive tactics
  • you can walk into a subscriber's premises and offer your services, even if you see an alarm system, as long as you find out who owns the equipment and you don't engage in any of the above conduct

    The best way to protect your property rights [i.e. your contracts] is to have strong contracts, have a policy of enforcing them and a reputation of enforcing your property rights.
    In response to AD's problem (the falsely obtained TRO against his employee, whom I gather is an armed patrolman/guard), it sounds like the former caretaker is lashing out at who ever they perceive is a threat to them, " as long as the former employee lives there."  It appears that person knew how to swiftly process a TRO, and AD needs to know if this is part of a pattern of legal filings that person has created to stir things up during his exit  As an amateur private detective, I would search public records to discover what other legal situations that person may be involved in, present and past. You might discover that this person is highly litigious, and/or has a warrant somewhere. You never know what surprises/problems you'll find in public records.  You need to know who you are dealing with, and public records are a goldmine of information.  I suggest you do a little private investigating yourself and if it's shown that this person has a history of obtaining TRO's (especially without the defendant being notified of it!!!) then it ought to be easy to get it vacated.  Oh, one more thought.  Can AD file and win (his Show Cause to Vacate the TRO) without the ex-caretaker being notified of the proceedings like what he did to you/your employee?  What's good for the goose is good for the gander!  ha ha ha!
Cynthia Hart
Retired Security Consultant
Springfield, OR