Grupo Televisa, S.A. v. Telemundo Communications Group, Inc.

                                                                                    [PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                                                                               FILED
                               ________________________               U.S. COURT OF APPEALS
                                                                        ELEVENTH CIRCUIT
                                     No. 05-16659                           MAY 10, 2007
                               ________________________                  THOMAS K. KAHN
                                                                              CLERK
                          D. C. Docket No. 04-20073 CV-UUB

GRUPO TELEVISA, S.A.,
TELEVISA, S.A. DE C.V.,
TELEVISO TALENTO, S.A. DE C.V.,
                                                                         Plaintiffs-Appellants,

                                             versus

TELEMUNDO COMMUNICATIONS GROUP, INC.,
TELEMUNDO TELEVISION STUDIOS, LLC,
                                                                       Defendants-Appellees.

                               ________________________

                      Appeal from the United States District Court
                          for the Southern District of Florida
                            _________________________

                                       (May 10, 2007)

Before TJOFLAT, FAY and SILER,* Circuit Judges.


________________________________
     *Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting by
designation.
FAY, Circuit Judge:

      This appeal challenges a decision to apply Mexican law in a suit alleging

tortious interference with a contract for the services of a Mexican soap opera star.

The appellants (collectively “Televisa”) are a trio of Mexican corporations that

produce radio and television programs for Spanish-speaking audiences in Mexico

and abroad. They license an American broadcaster, Univision, to carry their

“telenovelas” or soap opera programs in the United States. The appellees

(collectively “Telemundo”) are rival Spanish-language television producers and

broadcasters that are headquartered in Florida. After an actor who was under

exclusive contract to Televisa accepted a role in a Telemundo soap opera, Televisa

sued its American rival in federal district court in Miami, claiming tortious

interference under Florida law.

      Telemundo moved to dismiss the claim pursuant to Rule 12(b)(6), arguing

that Mexican law, which does not recognize a cause of action for tortious

interference, governed the dispute. Televisa urged the court to apply Florida law

since the acts leading to the allegedly offensive conduct occurred in Florida. The

district court denied Telemundo’s motion to dismiss and ordered the motion

converted to a motion for summary judgment. The court followed the choice of

law rules of the forum state, which dictate that the court apply the law of the state

                                          2
with the “most significant relationship” to the occurrence and the parties.

Although the court declined to make a finding as to where the conduct causing the

injury occurred, it found that other contacts favored the application of Mexican

law, which would bar the claim. Accordingly, the court awarded Telemundo

summary judgment, and Televisa filed an immediate appeal, challenging the

court’s “most significant relationship” calculus. For the reasons stated below, we

vacate the district court’s summary judgment decision and remand the case for

trial under Florida’s law of tortious interference.

                                I. BACKGROUND

      Grupo Televisa S.A., Televisa S.A., and Televisa Talento S.A. de C.V.

(collectively, “Televisa”), are three closely affiliated Mexican corporations which

produce Spanish-language television and radio programs for broadcast both in

Mexico and abroad. Televisa also produces Spanish language periodicals and

grooms many of the performers who appear in its productions for stardom,

obtaining the rights to use their images and voices for promotional purposes.

Televisa ranks as the largest producer of Spanish-language media in Central and

Latin America, and it exports many television programs to the United States.

      The United States represents an important market for “telenovelas,” short

serialized television dramas that are similar to American soap operas. Unlike

                                           3
American soap operas, which attract daytime audiences, telenovelas air during

prime-time viewing hours. Televisa maintains its international sales office in

Florida, but it does not broadcast its telenovelas to the states directly. Instead, it

licenses Univision Communications Group, Inc., a large Spanish-language

broadcasting corporation, to carry its television programming in the U.S. on its

networks, Univision and Telefutura. Together, these two networks command 80 %

of the Spanish-language television market in the U.S. Televisa owns an

unconsolidated equity interest in Univision.

      Univision’s chief rival for the attention of Spanish television audiences in

the U.S. is the Telemundo Network, which is owned and operated by a subsidiary

of the Telemundo Communications Group, LLC, which is itself a subsidiary of

NBC Universal, Inc. Telemundo Communications Group, Inc. produces

telenovelas through Telemundo Television Studios, LLC. Both Telemundo

Communications Group, Inc. and Telemundo Television Studios, LLC are

headquartered in Hialeah, Florida, which is where Televisa alleges that Telemundo

committed tortious interference with one of its contracts.

      The contract involved a Mexican actor named Juan Mauricio Islas Ilescas

(“Islas”). On January 20, 2000, Islas signed an “Offering Letter” to Televisa. The

Letter stated that Islas proposed to offer his services for “artistic interpretation” in

                                            4
certain productions,“personal presentations” for promotional purposes, “voice

interpretations in respect to any production” and “use of image” to Televisa on an

exclusive basis for seven years. Islas proposed that all the aforementioned

activities would be governed by a civil agreement and according to the Federal

Copyrights Law of Mexico. Televisa accepted the offer on January 26, 2000,

executing a “Framework Agreement for Rendering of Services on an Exclusive

Basis” with Islas. Televisa had been grooming Islas as an actor since 1990 and had

sent him to its acting school and cast him in a number of telenovelas.

      The 2000 Framework Agreement contained a choice of law provision which

stated that Mexican Federal Copyrights Law would govern the agreement. It also

contained a penalty provision that stated Islas would owe Televisa P$840,000 in

Mexican pesos in the event that he breached the terms of the agreement, and a

separate penalty of P$5,880,000 in Mexican pesos should he breach his

exclusiveness obligations under the agreement.

      Additionally, Islas pledged that he would not render his services to any third

party in Mexico or abroad for at least six months following termination of the

agreement, should Televisa terminate the agreement early for breach. The

Agreement also contained a first right of refusal provision that gave Televisa the

right to match any third party offer that Islas might receive within six months of

                                          5
the termination of the Agreement. In exchange for Islas’ services, Televisa

promised to pay him a monthly salary, separate payments for each telenovela, a

lump sum towards the purchase of real property and yearly bonuses. Televisa and

Islas modified the contract on April 1, 2001, on April 15, 2001, and once more on

December 1, 2002, increasing Islas’ compensation and the penalties for breach. In

the interim, Televisa and Islas also executed four separate actors union agreements

for specific telenovela projects.

      On November 7, 2003, Mr. Islas, who was still under contract to Televisa,

signed an exclusive production agreement with Telemundo at its offices in

Hialeah, Florida. The Agreement stated that Telemundo engaged Islas to perform

acting services in programs produced by Telemundo or third parties for use on

Telemundo’s network. The Agreement also contained an exclusivity provision in

which Islas pledged that he “would not commence or participate in any

negotiations for his services with, or render services for any third parties without

Telemundo’s prior written consent” during the term of the agreement. Emergency

Motion for Temporary Restraining Order and Preliminary Injunction, January 20

& 22, 2004, Plaintiffs’ Exhibit 3, at 2, § 3. The Agreement was to be binding until

it was replaced by a long form agreement. Id. at 9, § 21.




                                          6
      On November 11, 2003, Mr. Islas and Telemundo signed a Conditional

Deposit Agreement with the Banco Nacional de México, S.A., appointing the bank

as the depository for a $1,000,000.00 payment from Telemundo to Islas. The

Deposit Agreement authorized the bank to release the payment once Telemundo

notified the bank that certain conditions obtained. The conditions that Telemundo

sought to confirm were that:

      (i) any current services agreement which could limit the Artist’s ability to
      render to Telemundo the services contemplated in the Services Agreement
      is terminated (either by final, non-appealable court order or by a valid and
      enforceable release from any party to any current services agreement to
      which the Artist is a party), and
      (ii) that the Artist does not have any other obligation that could limit his
      ability to render to Telemundo the services contemplated in the Services
      Agreement.”

Emergency Motion for Temporary Restraining Order and Preliminary Injunction,

January 20 & 22, 2004, Plaintiffs’ Exhibit 4, at 4, ¶ D.

      On December 17, 2003, Islas issued a press release in which he stated that

he planned to leave Televisa. Televisa sent Telemundo a letter on January 5, 2004,

informing them that Islas had an exclusivity contract which would run through

January 2007. Televisa also notified Islas on January 6, 2004 that it planned to

film a new telenovela beginning January 8th, and expected him to report for the

taping. Islas did not report to Mexico for taping of Televisa’s project on January

8th. Telemundo began filming the first project in which it planned to cast Mr. Islas
                                          7
on January 12, 2004 at its studios in Hialeah. That same day Televisa filed suit

against the Telemundo Communications Group, Inc. (“TCG”) in federal district

court in Miami, alleging tortious interference with contract. Televisa also

requested a preliminary injunction to prevent TCG from using Islas’s services

through the duration of the Televisa-Islas contract. Televisa filed a separate

motion for a temporary restraining order to keep TCG from moving forward with

its plans for the Islas project, a telenovela which was billed as “La Prisionera.”

      According to Televisa, Telemundo held several meetings with Islas between

September 2003 and November 2003 which culminated in the execution of the

exclusive production agreement on November 7, 2003. The contacts that

Telemundo had with Islas during the period from September 2003 through

November 2003 consisted of the following:


<     In late September 2003, Islas authorized his agent, David Vazquez, to meet
      with James McNamara, the President and Chief Executive Officer (“CEO”)
      of TCG at TCG’s offices in Florida.

<     On October 1, 2003, the Director of Business and Legal Affairs for the
      Telemundo Network Group, LLC (“TNG”), Juan Delgado, drafted a non-
      binding letter of intent to Islas from his offices in Florida. The letter
      outlined the terms for a possible contract with Islas. Delgado faxed the
      agreement to TCG’s President and CEO, James McNamara, who was to
      meet with David Vazquez, Islas’ agent, at a hotel in Mexico City later that
      same day.



                                          8
<   TCG’s President and CEO, James McNamara, and Ramon Escobar, the
    Executive Director of Programming and Production for TNG, met with
    Islas’ representative, David Vazquez, at the Four Seasons hotel in Mexico
    City, Mexico on October 1, 2003.

<   On October 3, 2003, Islas met directly with TCG’s President and CEO
    James McNamara, TNG’s Executive Director of Programming and
    Production, Ramon Escobar, and TNG’s in-house counsel Delgado at the
    Mandarin Oriental Hotel in Miami, Florida. Islas’ agent, David Vasquez,
    and two other Telemundo representatives were present as well.

<   Sometime in early October 2003, TCG retained a Mexican attorney, Victor
    Frias, to advise them on Islas’ exclusivity agreement with Televisa and any
    liabilities that Telemundo might incur under Mexican contract law should it
    engage Islas to appear in its productions while the Televisa contract was in
    effect.

<   On October 10, 2003, TNG’s in-house counsel, Juan Delgado, transmitted a
    draft of a proposed service agreement between Telemundo and Islas from
    his office in Miami to Islas’s representative, David Vazquez, in Mexico
    City.

<   In late October or early November of 2003, TNG’s Executive Director of
    Programming and Production, Ramon Escobar, met with Islas directly at the
    Grand Bay Hotel in Miami.

<   On November 7, 2003, Telemundo legal counsel Delgado and Frias, who
    were joined by Miami attorneys Rudolph Aragon and Dan Blonsky,
    participated in a conference call from Miami with Daniel Kummer, in-house
    counsel for NBC Universal Inc., which owns Telemundo. After the
    conference call, Kummer exchanged email messages with Aragon in Miami.
    Kummer also sent an email addressing the “‘Pedro Smith’ Talent
    Acquisition Issue” to various Telemundo representatives.

<   Later that same day, on November 7, 2003, TNG’s in-house counsel,
    Delgado, and TCG’s Mexican counsel, Frias, met with Islas and his
    attorney, David Cohen, at TCG’s offices in Florida. Islas and Telemundo
    entered into an agreement at TCG’s offices in Florida.
                                      9
<     On November 11, 2003, Islas and Telemundo executed a “Conditional
      Deposit Agreement” with the Banco Nacional de México, S.A. which was to
      serve as a depository for the transfer of a $1,000,000.00 payment from
      Telemundo to Islas. The agreement states that the payment will issue once
      Telemundo confirms that Islas has no other existing obligations that will
      impact his ability to perform under the terms of the November 7 Agreement.

      The court held a hearing on Televisa’s request for a temporary restraining

order on January 14, 2004. TCG objected to the temporary restraining order,

insisting that it had not yet filmed any of the scenes in which Islas was to appear.

The district court denied Televisa’s request for a temporary restraining order,

noting that the plaintiff had failed to establish irreparable harm.

      Televisa filed an Amended Complaint against Telemundo in federal district

court in Miami on January 21, 2004, adding Telemundo Television Studios, LLC

(“TTS”) as a defendant. The district court held a hearing on Televisa’s request for

a preliminary injunction on January 22, 2004. Although the court noted that

Televisa had presented credible testimony that losing Islas from its roster of

performers would result in “a substantial loss of audience and advertiser

goodwill,” the court ultimately denied the request. The court stated that Televisa

had failed to show how an injunction would restore the lost goodwill or prevent

additional irreparable losses before the court could adjudicate Televisa’s claim.

Order Denying Plaintiffs’ Motion for Preliminary Injunction, January 27, 2004, at

                                          10
17. Televisa filed an interlocutory appeal with the U.S. Court of Appeals for the

Eleventh Circuit on January 29, 2004, challenging the district court’s decision on

this matter. This Court denied the appeal on August 26, 2004.

      In the meantime, on February 9, 2004, Telemundo moved to dismiss

Televisa’s amended complaint pursuant to Rule 12(b)(6) of the Federal Rules of

Civil Procedure, arguing that Mexican law governed the dispute and that Mexican

law did not recognize a cause of action for tortious interference. The court denied

Telemundo’s motion to dismiss on March 9, 2004, but issued a subsequent order

on June 10, 2004, which stated that it would treat Telemundo’s motion as a motion

for summary judgment.

      Televisa filed a Second Amended Complaint on September 27, 2004,

adding a damage claim. On October 18, 2005, the court granted Telemundo’s

motion for case-dispositive summary judgment, applying Mexican law, which

does not recognize an action for tortious interference. The court issued a final

judgment for Telemundo on October 31, 2005.

      Thereafter, Televisa filed a Notice of Appeal with the U.S. Court of Appeals

for the Eleventh Circuit on November 25, 2005. Televisa also filed a separate

intellectual property action before the court for the Federal District of Mexico to

enjoin Islas from using his own name and likeness for commercial promotions.

                                         11
Islas requested a declaratory judgment that his exclusivity contract with Televisa

was void and unenforceable. Both actions remain pending in Mexico.

                          II. STANDARD OF REVIEW

      The decision to award the defendants summary judgment in this case turned

on a conflict-of-laws issue —whether to apply Mexican law, which does not

recognize an action for tortious interference with contract, or Florida law, which

does. A conflict-of-laws issue presents a legal question which appellate courts

review de novo. American Family Life Assurance Co. v. United States Fire Co.,

885 F.2d 826, 830 (11th Cir.1989); LaFarge Corp. v. Travelers Indem. Co., 118

F.3d 1511, 1514-15 (11th Cir. 1997).

      However, the district court had to make certain factual findings before it

resolved the conflict-of-laws issue in favor of Mexican law. We review the court’s

factual findings under a clearly erroneous standard, assuring ourselves that the

findings are supported by substantial credible evidence. See Fed. R. Civ. P. 52(a);

see also Fioretti v. Massachusetts Gen. Life Ins. Co., 53 F.3d 1228, 1230 n.4 (11th

Cir. 1995) (applying the clearly erroneous standard of review to the factual

findings underpinning a choice-of-law decision).

      Finally, we review the district court's ruling on a motion for summary

judgment de novo, adhering to the same legal standards that bound the district

                                         12
court. National Fire Insur. Co. of Hartford v. Fortune Const. Co., 320 F.3d 1260,

1267 (11th Cir.), cert. denied, 540 U.S. 873 (2003). Rule 56(c) of the Federal

Rules of Civil Procedure provides that a district court should grant summary

judgment if the record, including pleadings, depositions, answers to

interrogatories, admissions on file, and affidavits, fails to disclose any genuine

issue of material fact and the moving party is entitled to judgment as a matter of

law. Fed. R. Civ. P. 56(c); National Fire Insur. Co., 320 F.3d at 1267. As we

review the record on a motion for summary judgment, we draw all reasonable

inferences that can be sustained by the record and evaluate those inferences in the

light most favorable to the non-moving party. Whatley v. CNA Ins. Cos., 189 F.3d

1310, 1313 (11th Cir. 1999).

                                 III. DISCUSSION

A. Choice of Law Rules for Federal Courts Sitting in Diversity

      A federal court sitting in diversity will apply the conflict-of-laws rules of

the forum state. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941).

As a preliminary matter, the court must characterize the legal issue and determine

whether it sounds in torts, contracts, property law, etc. Once it has characterized

the legal issue, it determines the choice of law rule that the forum state applies to




                                          13
that particular type of issue. Acme Circus Operating Co., Inc. v. Kuperstock, 711

F.2d 1538, 1540 (11th Cir. 1983).

      Florida resolves conflict-of-laws questions according to the “most

significant relationship” test outlined in the Restatement (Second) of Conflict of

Laws. Bishop v. Florida Specialty Paint Co., 389 So.2d 999, 1001 (Fla. 1980).

The Restatement (Second) of Conflict of Laws provides a “General [Tort]

Principle” in section 145 that is intended to inform courts as they apply the more

specific “Choice of Law Principles” outlined in section 6. The more specific

“Choice of Law Principles” apply to all areas of law which determine choice of

law through a most significant relationship test, not just to issues of tort.

B. § 145 of the Restatement (Second) of Conflict—The General Tort Principle

      Section 145(1) lays out the basic principle for tort actions and section

145(2) lists four “contacts” that courts should consider in the course of applying

the specific Choice of Law Principles under section 6. Section 145 of the

Restatement (Second) of Conflict of Laws provides:

      (1) The rights and liabilities of the parties with respect to an issue in
      tort are determined by the local law of the state which, with respect to
      that issue, has the most significant relationship to the occurrence and
      the parties under the principles stated in §6.

      (2) Contacts to be taken into account in applying the principles of § 6
      to determine the law applicable to an issue include:

                                           14
                  (a) the place where the injury occurred,
                  (b) the place where the conduct causing the injury occurred,
                  (c) the domicil, residence, nationality, place of incorporation
                  and place of business of the parties, and
                  (d) the place where the relationship, if any, between the parties
                  is centered.

Section 145 advises that “[t]hese contacts are to be evaluated according to their

relative importance with respect to the particular issue.” Id.

        In this case, the court characterized the nature of the alleged tort as “the

misappropriation of trade values.” In keeping with the commentary to section 145,

the court concluded that the “place of injury” should not play an important role in a

case of this type as the plaintiff would normally feel the loss most acutely at his

headquarters. See § 145(2) cmt. f. However, the district court largely ignored the

remaining commentary under this section, which states that the “principal location

of the defendant’s conduct” is the single most important contact in cases involving

misappropriation of trade values. 1 Id.


         1
             Comments on subsection 2 indicate that the “place where the conduct occurred” will assume greater
importance than the “place where the injury occurred” in certain situations. The situations cited include cases where
the injury occurred in two or more states, where the place of injury cannot be ascertained or is fortuitous and bears
little relation to the occurrence and the parties. R ESTATEM ENT (S ECO N D ) O F C O N FLICT O F L AW S § 145 cmt.
subsection 2 (1971). Indeed, the comments note, the “place where the conduct occurred” assumes particular
importance “in the case of torts involving interference with a marriage relationship or unfair competition since in the
case of such torts there is often no one clearly demonstrable place of injury.” Id.
           On its face, Televisa’s complaint would seem to present one of those cases in which a court would accord
“the place where the conduct occurred” particular importance. The facts point to injury in two or more states
(Mexico and Florida) and the injury that occurred in one of those states, Mexico, bears little relation to the
defendants. Although the plaintiffs are based in Mexico, the defendants are based outside Mexico, in Florida, and
they engaged in the alleged tortious conduct, for the most part, at their headquarters in Florida.



                                                         15
      Although it noted that the alleged tortious conduct occurred in both Florida

and Mexico, the court declined to make a finding as to the principal location of the

defendant’s conduct. While the facts do indicate that the defendants held one

meeting with Islas’ agent in Mexico, they held four such meetings with Islas and /

or his representatives in Miami. The Florida meetings included: the initial contact

between representatives of both parties; the first meeting between the parties that

Islas attended directly, which defendants’ in-house counsel and its CEO also

attended; a second meeting between Islas and the defendants; and the meeting

where Islas and the defendants entered into an exclusivity agreement; thereby,

breaching Islas’ pre-existing exclusivity agreement with the plaintiffs. The

defendants also generated most of the written communications regarding Islas from

their home offices in Florida.

      Thus, the Florida contacts are both numerically and qualitatively more

significant when it comes to determining the “principal location of the defendant’s

conduct.” The record simply doesn’t support the district court’s decision to dismiss

the significance of this point of contact or its failure to recognize that this contact

pointed conclusively to Florida. Moreover, comment ‘e’ to section 145 (2) notes

that “when the primary purpose of the tort rule involved is to deter or punish

misconduct, the place where the conduct occurred has peculiar significance (see

                                           16
Comment c).” Id. Although, Televisa argued that this was the primary purpose of

Florida’s tortious interference rule, the court rejected this argument. The district

court concluded that the primary purpose of the alleged tort was to protect property

rights in contract, not to regulate conduct, as the plaintiffs asserted.

      However, as comment ‘c’ in section 145(1) of the Restatement (Second) of

Conflict of Laws notes, “[t]o some extent, at least, every tort rule is designed both

to deter other wrongdoers and to compensate the injured person.” Florida’s law of

tortious interference is clearly conduct-regulating on some level since the law

allows for punitive damages, which are meant to punish wrongdoers. See HGI

Assocs. v. Wetmore Printing Co., 427 F.3d 867, 876-77 (11th Cir. 2005).

      And, although Florida does not generally recognize punitive damages for

breach of contract claims, it may recognize them “where the acts constituting a

breach of contract also amount to a cause of action in tort.” Id. (citing Griffith v.

Shamrock Vill., Inc., 94 So. 2d 854, 858 (Fla. 1957)). In such cases, the underlying

tort must be based on “an intentional wrong, willful or wanton misconduct, or

culpable negligence, the extent of which amounts to an independent tort....” S. Bell

Tel. & Tel. Co. v. Hanft, 436 So. 2d 40, 42 (Fla. 1983).

      This is clearly the case with respect to Televisa’s complaint, which alleges

an intentional tort. Persons who commit tortious interference with a contract desire,

                                           17
or at the very least anticipate, certain consequences such as breach. By refusing to

recognize that Florida’s tortious interference rule is intended to regulate conduct,

the district court undervalued the importance of the contacts relating to the place

where the conduct causing the injury occurred.

        With respect to the other contacts listed under section 145(2), the court

found, quite correctly, that they were inconclusive for the purposes of determining

choice of law in this case. Those contacts include: “the domicil, residence,

nationality, place of incorporation and place of business of the parties,Ӥ 145(2)(c),

and the “place where the relationship between the parties, if any, is centered,” §

145(2)(d). Certainly, Televisa and Telemundo do not share any contacts in terms of

domicil, nationality, place of incorporation. Moreover, the parties agreed that they

share no relationship.2

C. § 6 of the Restatement (Second) of Conflict—Specific Choice of Law Principles

        Having concluded that the section 145(2) contacts did not point conclusively

to either Florida or Mexico for choice of law purposes, the district court examined


         2
           The district court ventured to add, however, that the parties share a connection to Islas and the underlying
contractual relationship that gives rise to the claim between Islas and Televisa.More significantly, perhaps, the
record suggests that the two parties share in a business rivalry since their Spanish television programs are broadcast
on competing stations in the United States. Although Televisa does not broadcast its productions in the U.S. directly,
it does license them for broadcast through Univision, a corporation in which Televisa holds an unconsolidated equity
interest. Univision operates two of the three Spanish language television networks that broadcast within the U.S., and
Telemundo operates the other. Televisa also maintains its international sales office in Florida. Thus, to the extent that
Televisa, through its licensee Univision, and Telemundo compete for a share of the Spanish television market, their
business rivalry is arguably centered in Florida, and her sister states, but certainly not Mexico.

                                                          18
the section 6 factors to “resolve the standoff.” Section 6 of the Restatement

(Second) of Conflict of Laws provides that, absent a statutory directive on a choice

of law, a state will consider the following factors for their relevance to the issue:

      (a) the needs of the interstate and international systems,
      (b) the relevant policies of the forum,
      (c) the relevant policies of other interested states and the relative
      interests of those states in the determinations of the particular issue,
      (d) the protection of justified expectations,
      (e) the basic policies underlying the particular field of law,
      (f) certainty, predictability and uniformity of result, and
      (g) ease in the determination and application of the law to be applied.

RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 6(2)(a)-(g) (1971).

      The commentary to this section cautions that the factors are not listed in

order of relative importance and that varying weight will be given to particular

factors in different areas of law. Id. § 6(2) cmt. c. Unfortunately, the district court

weighed the various factors as though Televisa’s tortious interference claim

sounded in contract law. Yet, as comment ‘v’ under section 766 of the Restatement

(Second) of Torts explains, a plaintiff may maintain an action against a third party

for tortious interference and a separate action against another party for breach of

contract. Both the breaching party and the party who induced that party to breach

his contract are wrongdoers and are liable to the plaintiff for harm. RESTATEMENT

(SECOND) OF TORTS § 766 cmt. v. (1979).



                                           19
        Moreover, under Florida law, a plaintiff can maintain a cause of action

against a third party for tortious interference in a contract even though he might not

be able to enforce the underlying contract. Border Collie Rescue, Inc. v. Ryan, 418

F. Supp. 2d 1330, 1344 (D. Fla. 2006) (citing United Yacht Brokers, Inc. v.

Gillespie, 377 So. 2d 668, 672 (Fla. 1979)). This fact suggests that the terms of the

underlying contract and the parties’ expectations should have little bearing on the

law that governs third party interference in that contract.

        Nevertheless, the district court found that the “needs of the interstate and

international forums,” “the relevant policies of other interested states,” “the

protection of justified expectations,” and “certainty, predictability and uniformity

of result” all weighed heavily in favor of Mexico because the underlying contract

was based there. It also found that application of Florida law would do nothing to

advance the “relevant policies of the forum” because Florida’s primary purpose in

allowing tortious interference claims was to protect rights to performance of a

contract.3 When rights to the performance of a contract exist in another forum,

         3
           The court cited Smith v. Ocean State Bank, 335 So. 2d 641, 642 (Fla. 1st DCA 1976) as support for this
proposition, but the court appears to have read Smith too broadly. The appellant in Smith was suing a bank for
interfering in an arrangement that he made to purchase silver with loan funds from the bank. Although the bank’s
note had not yet come due, the bank protested the proposed deal to the exchange and that ended it. The issue on
appeal was whether the appellant had made out a claim for tortious interference in a business relationship because he
had not asserted breach of an enforceable contract. The trial court ruled that he had not. The appellate court reversed
the decision, ruling that a plaintiff could maintain a claim for tortious interference with a business relationship
regardless of whether he had an enforceable contract or not. Id. The appellate court cited 45 A M . J U R . 2 D
Interference § 39, which states that the theory behind the doctrine of tortious interference “is that the right to perform
a contract and to reap the profits resulting from such performance, and also the right to performance by the other

                                                          20
Florida has no interest in protecting such outside property rights, the court

reasoned. Accordingly, the court concluded that Mexico represented the state with

the most significant relationship to the parties and the occurrence.

        We believe that the court overstated the extent to which the “needs of the

interstate and international systems” favor the application of Mexican law in this

case. Indeed, the court stated that those needs could only be met through the

application of Mexican law since the contracting parties were both Mexican, the

contract was to be performed in Mexico and Mexican law governed any contractual

disputes. Applying Florida law in this case, the court reasoned, would undermine

the international commercial system. In such a case, the parties would be exporting

Florida law to control the rights and liabilities of a Mexican contract, the court

concluded.

        Televisa is not seeking to enforce its contract rights against Islas under

Florida contract law, however. And, the Florida law that Televisa is seeking to

impose will do nothing to effect its rights and liabilities under the Islas contract.



party, are property rights which entitle each party to protection against all the world, and to seek compensation by
action in tort for any injuries to such contract. The interest protected has been said to be the right of the individual to
security in his business relations, that is, the right to have preserved the undertaking of persons with whom he has
commercial dealings.” Smith, 335 So. 2d at 642. Thus, in Smith, the court was emphasizing the plaintiff’s right to
receive compensation for his injury — one of the purposes behind the tort, but not necessarily the only or even
primary purpose behind the tort rule. The court did not hold that the primary purpose of the tort rule was to protect
locally-based contracts or that Florida has no interest in regulating tortious interference within its borders per se. Id.
          .

                                                           21
Televisa is seeking to apply Florida tort law that will compensate it for the losses

caused by a third party’s interference in the Islas contract. That third party is a

corporate domiciliary of Florida and it allegedly used Florida as the venue for its

tortious acts.

      Denying Mexican businesses the right to sue Florida domiciliaries for

tortious interference in their contracts would do little to “facilitate commercial

intercourse” between Mexico and Florida. See RESTATEMENT (SECOND) OF

CONFLICT OF LAWS § 6 cmt. d (1971). The record indicates, for example, that

Televisa maintains its international sales office in Florida. As the “Association of

Producers and Distributors of Mexican Films” and the “National Chamber of

Commerce for the Radio and Television Industries (of Mexico)” indicated in their

amicus curiae brief, the district court’s ruling would hinder the ability of Mexican

companies to compete in the international marketplace. They argue that if the

ruling were affirmed, it would be tantamount to granting Florida domiciliaries a

safe haven from which to interfere in foreign contracts. Clearly, this would not

serve the needs of the international systems.

      The district court also appears to have accorded too much weight to what the

“justified expectations of the parties” were, concluding that they weighed heavily

in favor of Mexico. Granted, Televisa and Islas stipulated that Mexico’s Federal

                                           22
Copyright law would govern interpretation of the exclusivity contract and all

disputes arising out of that contract. However, their agreement did not anticipate

tortious interference by a third party. As the Florida Supreme Court pointed out

when it contrasted contract actions and tort actions in Sturiano v. Brooks, 523

So.2d 1126, 1130 (Fla. 1988),“[w]ith tort law, there is no agreement, no foreseen

set of rules and statutes which the parties had recognized would control the

litigation.”

       We also note that intentional torts are not like negligent torts. When parties

commit a negligent act, they give no thought to the legal consequences of their

conduct or to the particular law that may apply. See RESTATEMENT (SECOND) OF

CONFLICT OF LAWS § 6(2) cmt. g (1971). Intentional torts, however, presuppose a

certain level of awareness, a recognition of potential consequences. As the facts

demonstrate, Telemundo was aware that its actions were likely to induce Islas to

breach his contract with Televisa and move to Florida where Telemundo films its

productions. That was the objective.

       Indeed, Telemundo had its legal counsel research the question of whether

Televisa might be able to pursue a claim against it under Florida tort law. Although

the parties’ justified expectations may not be as pivotal a factor for determining




                                          23
choice of law in torts issues as it is for contracts issues, to the extent that it figures

in this case at all, we find that it points to Florida.

       The district court also concluded that it could best assure “certainty,

predictability and uniformity of result” by applying Mexican law. In doing so, it

focused once again on the nature of the underlying contract as opposed to the

nature of the alleged tort. Given that the plaintiffs are Mexican, and that they

stipulated Mexican law should govern the underlying contract, the court opined, “if

the law were equal in both states, [p]laintiffs would have filed in Mexico.”

       This assumes that the plaintiffs could have filed an action against the

defendants in Mexico and simply want to avail themselves of more liberal recovery

laws in a different forum. In such a case, a court could simply deny jurisdiction on

the grounds of forum non conveniens. But there is nothing in the record to suggest

that the plaintiffs could have filed this suit in Mexico. Mexican jurisdiction does

not have the extra-territorial reach that the individual states enjoy in the U.S.

Mexican law applies to all persons within the country and to all events that occur

there. Federal Civil Code, Preliminary Provisions, Article 12 in: MEXICAN CIVIL

CODE ANNOTATED. BILINGUAL EDITION. Translated by Professor Jorge A. Vargas.

Thomson/West Publishing Co. 2005 at 3. The defendants committed their allegedly




                                             24
tortious acts outside Mexico, and neither one of the defendants are Mexican

corporations.

      Moreover, to the extent that “certainty, predictability and uniformity of

result” figure in this particular choice of law question, these factors favor the

application of Florida law. The Restatement (Second) of Conflict of Laws states

that “[p]redictability and uniformity of result are of particular importance in areas

where the parties are likely to give advance thought to the legal consequences of

their transactions.” RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 6(2) cmt. i

(1971). This explains in part why the law allows parties “to choose the law that will

determine the validity and effect of their contract.” Id. The plaintiffs’ action does

not turn on the terms of its contract with Islas, however. Florida law would allow

the plaintiffs to maintain a cause of action for tortious interference even if the Islas

contract were voidable. See, e.g., Border Collie Rescue, 418 F. Supp. 2d at 1344.

      Rather, the plaintiffs’ action turns on the conduct of entities that are not even

parties to the contract. As we have noted, Telemundo recognized that Florida law

might govern its conduct should it interfere in Televisa’s contract with Islas and it

chose to interfere, nonetheless. Thus, the defendants did give advance thought to

the consequences of their actions and should not be surprised to find themselves

liable under Florida law.

                                           25
      Finally, the district court found that the application of Mexican law could,

conceivably, advance a Mexican policy interest relating to contracts, whereas the

application of Florida law would do nothing to advance the policy interests of the

forum. (Contrast RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 6 (2)(c) with §

6 (2)(b)). This finding relies upon pure conjecture. The district court speculated

that Mexico might have a policy of facilitating “efficient breach” of contracts, but

did not cite a single legal authority in support of this proposition. Indeed, this Court

refused to accept a “foreign investment interest” theory which one of the parties in

Cortes v. American Airlines, Inc., 177 F.3d 1272, 1301 (11th Cir. 1999), advanced

under a choice of law analysis because the party did not present any evidence in

support of the theory.

      Although it was plausible that such a scheme could be designed to encourage

non-domiciliary corporations to transact business within a jurisdiction, this Court

observed in Cortes, “a party invoking the theory must adduce evidence to support

the assumptions underlying the theory. ... In the absence of such evidence, the

assumptions underlying this theory are ‘too strained to merit serious weight under

section 6(2)(c),’” Id. (quoting Judge v. American Motors Corp, 908 F.2d 1565,

1572-73 (11th Cir. 1980)).




                                          26
        Assuming, arguendo, that Mexico has a policy of facilitating “efficient

breach,” the crucial question is whether that policy would be advanced by

application of its rule regarding tortious interference claims. 4 It is difficult to see

how a hypothetical Mexican policy favoring “efficient breach” would be advanced

by denying Televisa the right to obtain redress in Florida when a third party

commits tortious acts in Florida that interfere with Televisa’s Mexican contract.

        Although Mexico might not have a policy that would be advanced by

applying its law in this situation, Florida does. The district court found otherwise,

but this finding proceeds from an overly broad reading of Smith. See supra note 3.

As the preceding discussion on section 145(2) has noted, Florida has a strong

interest in deterring tortious interference with contracts by those who operate inside

the state’s borders. See supra pp.17-18.

        The final factor to be considered for determining the “most significant

relationship” under section 6(2) is the “ease in the determination and application of

the law to be applied.” See RESTATEMENT (SECOND) OF CONFLICT OF LAWS §

6(2)(g) (1971). The court concluded that this factor favored Mexico because a



         4
          See, e.g., this Court’s discussion in Judge, 908 F.2d at 1571, as to whether Mexico’s prohibition against
wrongful death claims might reflect an economic policy consideration. This Court theorized that the prohibition
might reflect a desire to immunize certain socially useful enterprises from the “chilling” effect of adverse damage
awards. Yet, the crucial question, this Court observed, was, “whether, on the facts of this particular case, Mexico’s
economic policy will be advanced by the application of its wrongful death prohibition.” Id.

                                                         27
“Mexican plaintiff should look to Mexican law to remedy an interference with a

Mexican contract.” But such a comment ignores the difference between an action

for breach of contract and one based upon the tort of deliberate interference with a

contract. Nothing could be easier than for a court in Florida to apply Florida law to

tortious conduct which took place in Florida.

                                 IV. CONCLUSION

      We find that the factors to be considered in determining whether Mexico or

Florida has the “most significant relationship” to the parties and the conduct

alleged in this case tip the scales decidedly in favor of Florida. According to the

commentary for section 145 of the Restatement (Second) of the Conflict of Laws,

the “principal location where the defendant’s conduct occurred” would be the

single most significant “contact” in this type of case. The facts indicate that the

“principal location” was the defendant’s home base in Florida. The court declined

to make a finding as to “the place where the conduct causing injury occurred.” This

led the court to conclude that none of the section 145(2) contacts pointed

conclusively towards either Florida or Mexico. We find that the section 145(2)

contacts point conclusively to Florida. This clear error skewed the district court’s

choice of law analysis against Florida.




                                          28
      The court also refused to recognize that Florida has an interest in deterring

tortious interference with a contract per se, regardless of whether the underlying

contract was made in Florida. This error also skewed the analysis against Florida.

The court compounded this error by applying the choice of law factors outlined in

section 6(2)(a)-(g) of the Restatement (Second) of Conflict of Laws as though the

plaintiffs’ claim sounded in contract. It focused too much attention on the terms of

the Televisa-Islas contract, and the expectations that the parties had with respect to

this contract, minimizing the independent significance of Televisa’s tort claim

against Telemundo. As a result, it accorded factors that could favor Mexico if this

were, indeed, a conflict over contract law more weight than they deserved in this

conflict involving tort law.

      Accepting the underlying factors as considered by the district court, we

conclude there was a misapplication of the controlling law. The authorities guiding

a determination under a choice of laws issue compel a conclusion that this alleged

tortious interference tort claim is governed by the substantive law of Florida. The

summary judgment entered by the district court is vacated and the matter remanded

for proceedings consistent with this opinion.

REVERSED, VACATED, AND REMANDED.




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