Nebraska Rejects Restatement (Second) of Torts § 766A: No Independent Claim for Making Contract Performance More Burdensome

I. Introduction

Green Plains Trade Group LLC et al. v. Archer Daniels Midland Company, 320 Neb. 882 (Feb. 27, 2026), came to the Nebraska Supreme Court via a certified question from the U.S. District Court for the Central District of Illinois under Neb. Rev. Stat. § 24-219.

The underlying federal litigation is a dispute between ethanol producers: Green Plains (Nebraska-headquartered) sued ADM (Illinois-headquartered), alleging that ADM intentionally drove down the “Chicago Benchmark Price” for ethanol through strategic deliveries and below-market sales at the Argo, Illinois terminal—actions that allegedly reduced Green Plains’ revenues on contracts pegged to that benchmark, while ADM allegedly profited (including via derivatives positioned to gain from a lower benchmark).

The key legal issue was narrow but consequential: whether Nebraska would recognize a tortious-interference theory under § 766A of the Restatement (Second) of Torts (1979), which would impose liability when a defendant prevents the plaintiff from performing a contract or makes the plaintiff’s performance more expensive or burdensome—even without inducing the counterparty to breach.

II. Summary of the Opinion

The Nebraska Supreme Court answered the certified question “No”: Nebraska would not adopt § 766A as a cause of action for tortious interference with a business relationship or expectancy.

The court held, in substance, that:

  • Its earlier Nebraska decisions Pettit v. Paxton and Recio v. Evers neither adopted nor rejected § 766A.
  • § 766A lacks persuasive grounding in the English common law received by Nebraska through Neb. Rev. Stat. § 49-101.
  • Article I, § 13 of the Nebraska Constitution (the “open courts/remedy” clause) does not create new causes of action.
  • Because adopting § 766A is a policy-laden expansion of tort liability with plausible competing policy arguments, the court would defer to the Legislature rather than create the claim judicially.

III. Analysis

A. Precedents Cited

1. Nebraska tortious-interference framework: § 766 is recognized; § 766A is not

  • Pettit v. Paxton, 255 Neb. 279, 583 N.W.2d 604 (1998)
    • Role in this opinion: Pettit was the principal Nebraska decision invoked by both parties to argue that § 766A had already been resolved in Nebraska. The court treated Pettit as a § 766 (inducement-of-breach) case and emphasized Pettit’s statement that “one of the basic elements” is “an intentional act which induces or causes a breach or termination of the relationship.”
    • How it influenced the holding: The court used Pettit to clarify that prior Nebraska law recognized § 766-style interference, but that Pettit’s discussion of § 766A was not an adoption. Pettit therefore provided the baseline element (breach/termination) for traditional Nebraska interference claims, while also demonstrating why citations to § 766A are not the same as endorsement.
  • Recio v. Evers, 278 Neb. 405, 771 N.W.2d 121 (2009)
    • Role in this opinion: Recio contained passing engagement with § 766A, but the court noted that Recio assumed a § 766 theory and alternatively found any § 766A-type claim would fail on proof of loss.
    • How it influenced the holding: Recio was used to reject the argument that Nebraska had implicitly recognized § 766A. It functioned as a cautionary example: courts may discuss Restatement sections without adopting them.

2. Federal procedural backdrop shaping the certified question

  • Green Plains Trade Group v. Archer Daniels Midland, 648 F. Supp. 3d 1028 (C.D. Ill. 2022), vacated and remanded 90 F.4th 919 (7th Cir. 2024)
    • Role: The district court dismissed because Nebraska had not expressly adopted § 766A, choosing a “narrower interpretation.”
    • Influence: Nebraska’s Supreme Court aligned with the district court’s intermediate conclusion that Nebraska precedent neither adopted nor rejected § 766A, but went further to answer the forward-looking question: Nebraska would not adopt it.
  • Green Plains Trade v. Archer Daniels Midland, 90 F.4th 919 (7th Cir. 2024)
    • Role: The Seventh Circuit vacated dismissal and instructed prediction of Nebraska law, suggesting certification.
    • Influence: This set the stage for Nebraska’s definitive statement on § 766A, eliminating the need for federal prediction on this point going forward.

3. Reception statute, common-law origins, and constitutional limits

  • Williams v. Miles, 68 Neb. 463, 94 N.W. 705 (1903)
    • Role: Cited for the proposition (via Roscoe Pound) that Nebraska’s reception of English common law did not “petrify” it.
    • Influence: Supported the court’s acknowledgment that it possesses some capacity to modify common-law rules—but not an invitation to wholesale tort creation.
  • State v. Tautges, Rerat & Welch, 146 Neb. 439, 20 N.W.2d 232 (1945), and In re Estate of Lewis, 148 Neb. 592, 28 N.W.2d 427 (1947)
    • Role: Additional support for the court’s historic statements that it may adapt or reject inapplicable common-law principles.
    • Influence: These cases framed the court’s power as tempered by suitability, reason, justice, and institutional role.
  • State ex rel. Tyler v. Douglas Cty. Dist. Ct., 254 Neb. 852, 580 N.W.2d 95 (1998)
    • Role: The controlling Nebraska authority on article I, § 13: it does not create new rights; it guarantees remedies only where an underlying right exists.
    • Influence: Foreclosed the plaintiff’s argument that the open-courts clause required recognition of § 766A.
  • Corona de Camargo v. Schon, 278 Neb. 1045, 776 N.W.2d 1 (2009), and Wilfong v. Omaha & C. B. Street R. Co., 129 Neb. 600, 262 N.W. 537 (1935)
    • Role: Examples that common-law rules yield when inconsistent with constitutional requirements.
    • Influence: Helped the court distinguish (a) the judiciary’s duty to conform common law to constitutional commands from (b) creating brand-new causes of action absent such command.
  • Lopez v. Catholic Charities, 315 Neb. 617, 998 N.W.2d 31 (2023)
    • Role: Reiterated separation-of-powers: declaring public policy is primarily the Legislature’s function.
    • Influence: Bolstered the court’s conclusion that § 766A adoption is a policy decision for lawmakers, not judges.
  • Holmes v. Circo, 196 Neb. 496, 244 N.W.2d 65 (1976)
    • Role: Nebraska authority for leaving unrecognized-at-common-law expansions to the Legislature.
    • Influence: Provided intrastate precedent for restraint in recognizing novel claims.

4. English cases and “origins” analysis of § 766A

  • Keeble v. Hickeringill, (1707) 103 Eng. Rep. 1127 (K.B.), and Allen v. Flood, [1898] A.C. 1 (H.L.) 174 (appeal taken from Eng.)
    • Role: Green Plains relied on Keeble to argue a broad common-law protection of enterprise; the court relied on Allen to characterize Keeble as a nuisance/property case, not a generalized “interference” tort.
    • Influence: Undermined the argument that § 766A is simply an old common-law principle in modern dress.
  • Tarleton v. M'Gawley, (1793) 170 Eng. Rep. 153 (K.B.), and Garret v. Taylor, (1621) 79 Eng. Rep. 485 (K.B.)
    • Role: Cited as examples of liability for driving away customers by unlawful conduct.
    • Influence: The court treated these as aligning with what English law now calls the “unlawful means” tort rather than § 766A’s broader theory.
  • Secretary of State for Health v. Servier Laboratories Ltd., [2021] UKSC 24, and Lumley v. Gye, (1853) 118 Eng. Rep. 749 (Q.B.)
    • Role: Lumley was identified as the classic inducement-of-breach case (akin to § 766). Servier Laboratories Ltd. was used to emphasize separation between inducement and unlawful means torts in modern English law.
    • Influence: Supported the conclusion that English law’s recognized interference categories do not map onto § 766A’s “make performance more burdensome” formulation.
  • All Star Awards v. HALO Branded Solutions, 642 S.W.3d 281 (Mo. 2022)
    • Role: Noted for recognizing Allen’s characterization of Keeble.
    • Influence: Reinforced the court’s reading of Keeble as an ill fit for § 766A’s claimed lineage.

5. Competing authorities on adopting § 766A (and critiques of expansion)

  • Allen Family Foods, Inc. v. Capitol Carbonic Corp., No. N10C-10-313 JRS CCLD, 2011 WL 1205138 (Del. Super. Mar. 31, 2011) (unpublished opinion), and Wilspec Tech. v. DunAn Holding Group, 204 P.3d 69 (Okla. 2009)
    • Role: Examples of jurisdictions adopting § 766A for reasons of symmetry (hindering performance should be actionable like inducing breach).
    • Influence: Provided the “pro” policy arguments the Nebraska court acknowledged but declined to elevate into Nebraska law.
  • Gemini Physical Therapy v. State Farm Mut. Auto., 40 F.3d 63 (3d Cir. 1994), and Price v. Sorrell, 784 P.2d 614 (Wyo. 1989)
    • Role: Examples rejecting § 766A as too speculative and prone to abuse.
    • Influence: These cases were central to the Nebraska court’s articulation of the risks of § 766A liability.
  • Windsor Securities, Inc. v. Hartford Life Ins. Co., 986 F.2d 655 (3d Cir. 1993)
    • Role: Provided the court a structured critique: § 766A often duplicates other tort/contract remedies while creating uncertain and potentially chilling liability.
    • Influence: This reasoning dovetailed with the court’s reluctance to create a wide-ranging competition-adjacent tort without legislative calibration.
  • Price v. High Pointe Oil Co., Inc., 493 Mich. 238, 828 N.W.2d 660 (2013), Badillo v. American Brands, Inc., 117 Nev. 34, 16 P.3d 435 (2001), and Hulsh v. Hulsh, 2025 IL 130931, 272 N.E.3d 456, 487 Ill. Dec. 402 (2025)
    • Role: Cited for judicial restraint frameworks: common-law alterations require compelling reasons; new causes of action are often better left to legislatures.
    • Influence: Supported the court’s “compelling reasons” and separation-of-powers approach to novel tort recognition.
  • Walmart Stores East, LP v. Leverette, 321 Ga. 854, 917 S.E.2d 702 (2025)
    • Role: Example of a court reading a reception statute to constrain innovation.
    • Influence: Helped frame (though the Nebraska court did not adopt) the strongest version of the restraint argument.
  • Woodman ex rel. Woodman v. Kera LLC, 486 Mich. 228, 785 N.W.2d 1 (2010), and Torres v. JAI Dining Services (Phoenix), 256 Ariz. 212, 536 P.3d 790 (2023) (Bolick, J., concurring)
    • Role: Institutional competence: legislatures have superior tools for policy fact-finding and public-will assessment.
    • Influence: Reinforced that § 766A adoption is fundamentally policy-driven rather than a mere “gap fill.”
  • Elephant Ins. Company, LLC v. Kenyon, 644 S.W.3d 137 (Tex. 2022) (Young, J., concurring; Blacklock, J., joins), and Gamble v. United States, 587 U.S. 678, 139 S. Ct. 1960, 204 L. Ed. 2d 322 (2019) (Thomas, J., concurring)
    • Role: The court cited these to contrast the historical conception of judges “finding” law with modern recognition that many doctrinal choices are public policy.
    • Influence: Supported the opinion’s theme that modern courts should be reluctant to create broad new liabilities untethered from received common law or statute.

B. Legal Reasoning

1. Clarifying the doctrinal fork: § 766 vs. § 766A

The opinion begins by distinguishing two Restatement pathways:

  • § 766: liability where a defendant induces or causes the third party to a contract not to perform (classic “inducement of breach”). Nebraska recognizes this form of tortious interference (e.g., Pettit v. Paxton).
  • § 766A: liability where a defendant interferes by preventing the plaintiff’s performance or making it more expensive or burdensome. This is not inducement of the other contracting party.

That framing matters because it determines whether Nebraska’s established “breach/termination” element is conceptually required (as in § 766), or whether “increased burden” alone could trigger liability (as in § 766A).

2. The court rejects “implicit adoption” arguments based on Pettit and Recio

The court treated both cited Nebraska cases as non-decisional on § 766A. Pettit discussed § 766A only to reject its applicability on the facts, and Recio assumed § 766 and then disposed of any § 766A-like theory on evidentiary grounds. In both, § 766A was not adopted as Nebraska law.

3. Reception statute as a starting point for first-impression tort recognition

The court’s most distinctive move is methodological: in deciding whether to recognize a novel tort theory, it “ought to begin” with whether the theory has English common-law origins, because Nebraska adopted English common law (with limits) via Neb. Rev. Stat. § 49-101.

After ordering supplemental briefing, the court concluded § 766A lacks a persuasive English common-law lineage: Keeble v. Hickeringill was later understood as nuisance/property, customer-interference cases align with “unlawful means,” and Lumley v. Gye fits inducement-of-breach (akin to § 766), not the “hindering plaintiff performance” model of § 766A.

4. Article I, § 13 does not create causes of action

Green Plains’ constitutional argument—invoking the remedy guarantee of article I, § 13—failed because Nebraska treats that clause as non-creative: under State ex rel. Tyler v. Douglas Cty. Dist. Ct., it safeguards remedies where an underlying right exists, but it does not itself supply the right.

5. Separation of powers and restraint: policy choices belong to the Legislature

The court acknowledged its historic statements of common-law adaptability (Williams v. Miles, State v. Tautges, Rerat & Welch, In re Estate of Lewis), but emphasized that modern tort expansion is typically a policy judgment. Citing Lopez v. Catholic Charities, the court reiterated that declaring public policy is primarily the Legislature’s role.

Applying a “compelling reasons” posture (supported by authorities like Price v. High Pointe Oil Co., Inc. and Badillo v. American Brands, Inc.), the court declined to create § 766A because the policy arguments were plausible on both sides:

  • Pro-§ 766A: compensation and deterrence when a defendant deliberately increases the costs/burdens of performance (as in Wilspec Tech. v. DunAn Holding Group).
  • Anti-§ 766A: speculation, duplication of existing tort/contract remedies, uncertain scope, and chilling competitive conduct (as in Price v. Sorrell, Gemini Physical Therapy v. State Farm Mut. Auto., and Windsor Securities, Inc. v. Hartford Life Ins. Co.).

The court also found the case’s competitive pricing context an awkward vehicle for recognizing § 766A: lower prices to buyers are not obviously wrongful, and whether aggressive benchmark manipulation is “improper” competition may be better addressed through existing competition-regulating regimes or legislation, not an open-ended tort standard.

C. Impact

  • No Nebraska § 766A claims: Plaintiffs in Nebraska cannot sue merely because a third party made their performance more expensive/burdensome where the counterparty still performs and no inducement of breach is shown.
  • Consolidation around § 766: Nebraska interference law remains anchored in inducement/causation of breach or termination (the element highlighted from Pettit v. Paxton), reinforcing a narrower interference tort compared to § 766A jurisdictions.
  • Channeling to alternative theories: Economic harms linked to “hindering performance” must be pursued, if at all, through other established claims (fraud, trespass, nuisance, statutory unfair competition/antitrust where applicable, etc.) rather than a free-standing § 766A interference theory.
  • Methodological precedent: The opinion signals that Nebraska’s court will treat English common-law provenance (via § 49-101) as an important starting point for recognizing new torts—especially where the requested rule would expand liability in contested policy territory.
  • Legislative invitation: By characterizing § 766A adoption as a policy choice with competing considerations, the court implicitly leaves room for the Nebraska Legislature to authorize (or tailor) such liability by statute if it deems it appropriate.

IV. Complex Concepts Simplified

Certified question
A procedure allowing a federal court to ask a state supreme court to decide an unsettled question of state law, ensuring the federal court applies state law correctly.
Tortious interference under § 766
A third party wrongfully gets your contracting partner to break the contract; you sue the interferer for the losses caused by the breach.
Tortious interference under § 766A
A third party targets you, making it harder or more expensive for you to perform your contract, even if your contracting partner does not breach.
Reception statute (Neb. Rev. Stat. § 49-101)
Nebraska’s statute adopting applicable English common law as a default source of law, unless inconsistent with constitutions or statutes.
Article I, § 13 (open courts/remedy clause)
A constitutional guarantee that courts are open and remedies exist for recognized injuries; under Nebraska precedent, it does not itself create new legal claims.
“Unlawful means” tort (English law)
A distinct interference theory requiring unlawful acts aimed at harming the plaintiff by affecting a third party’s freedom to deal with the plaintiff—narrower and structurally different from § 766A.
Subrogation theory (repair cases)
Some older cases that look like “hindering performance” are better explained as the contractor stepping into the owner’s shoes to sue for damage to the property (a trespass-type harm), rather than recognizing a broad interference-with-performance tort.

V. Conclusion

Green Plains Trade Group v. Archer Daniels Midland Co. establishes that Nebraska will not adopt Restatement (Second) of Torts § 766A. The court’s reasoning rests on (1) the absence of prior Nebraska adoption, (2) the lack of clear English common-law roots for § 766A under Nebraska’s reception statute, (3) the non-creative nature of article I, § 13, and (4) institutional restraint: where tort expansion turns on contested policy judgments, Nebraska will generally defer to the Legislature.