Claim For Tortious Interference With Agreement Cannot Be Maintained Where A Plaintiff Acknowledged The Defendant And The Contractual Counterparty Had A Pre-Existing Relationship

Posted: July 11, 2025 / Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. Turner / Categories Tortious Interference, Contracts

Claim For Tortious Interference With Agreement Cannot Be Maintained Where A Plaintiff Acknowledged The Defendant And The Contractual Counterparty Had A Pre-Existing Relationship

On June 12, 2025, Justice Margaret A. Chan dismissed a claim for tortious interference with a agreement based on an acknowledged pre-existing relationship between the defendant and the contractual counterparty. In Oppenheimer & Co., Inc. v. Vivani Medical Inc., et al., Index No. 650421/2024, Oppenheimer & Co. entered into an agreement with Vivani Medical Inc. to locate an investor and fund a proposed merger. That merger fell through when Vivani Medical allegedly found a better deal through the services of ThinkEquity LLC. Oppenheimer sued both Vivani Medical and ThinkEquity on claims that included tortious interference with an agreement by ThinkEquity.

ThinkEquity asserted several defenses, including that it had a pre-existing financing relationship with Vivani Medical that gave it a superior first right of refusal to do future financing for Vivani and that Plaintiff knew this. The Court agreed and dismissed the tortious interference claim. It explained.

ThinkEquity had a pre-existing relationship with Vivani as shown by the two April 2020 agreements giving ThinkEquity the right of first refusal and the Limited Waiver adjusting that right. . . . Plaintiff knew this going in. The Agreement acknowledges ThinkEquity’s preexisting right to work with Vivani and even sets out payment to ThinkEquity for the Placement. The Agreement also specifies that the engagement of and performance by plaintiff of the contemplated services “do not violate any obligations owed by the Company Parties to any third party (including, without limitation, Think Equity.]” . . . Vivani was allowed to work with ThinkEquity without breaching the Agreement.

The attorneys at Schlam Stone & Dolan frequently counsel clients facing disputes over contracts and tortious interference claims. Contact the Commercial Division Blog Committee at commercialdivisionblog@schlamstone.com if you or a client have questions concerning such issues.