Deciding an issue of first impression, the Superior Court of Delaware recently authorized the assertion of claims based on a new theory of tortious interference with contract, but ruled that the plaintiff failed to state a claim under that theory. Allen Family Foods, Inc. operates a poultry processing facility and had contracted with Capital Carbonic Corporation to supply dry ice for the facility. In September 2010, Allen, believing that its contract with Carbonic had been terminated by its terms, entered into a contract with Praxair Distribution, Inc. to supply dry ice. Thereafter, Carbonic sent a letter to Praxair threatening litigation, after which Allen ceased performance of its contract with Praxair and, instead, continued to purchase dry ice pursuant to its previous agreement with Carbonic.

Allen then sued Carbonic, alleging that Carbonic tortiously interfered with its agreement with Praxair. Traditionally, to assert a tortious interference with contract claim, the plaintiff must allege that the defendant's conduct "induce[d] a third party to terminate a contract with the plaintiff unlawfully." Under the Restatement (Second) of Torts, there is an additional basis for a tortious interference claim where, rather than induce a third party to breach a contract, the alleged wrongdoer "intentionally and improperly interferes with the performance of a contract... between [the plaintiff] and a third person, by preventing the [plaintiff] from performing the contract or causing his performance to be more expensive or burdensome."