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  • Jeff Vail

Civil Conspiracy

A Guy Fawkes Mask - Perhaps the most notorious "Conspirator" (or Traitor, depending on one's royalist/parlimentarian bent)

Civil conspiracy is one of the fundamental business torts—and not simply for its sinister moniker. Civil conspiracy is the primary method to attribute liability for a tort to parties or entities who did not directly engage in conducting the tort itself. This is most important for ensuring that there is a sufficiently collectable entity on the hook for whatever tortious conduct has caused damages. From a risk management perspective, even general or seemingly innocent involvement with third parties may lead to at least allegations of civil conspiracy liability for those parties’ torts.

The core of civil conspiracy is an agreement between parties—implied by conduct or expressed in words—to work together toward a common goal, where either the goal itself is tortious or the work toward the goal is tortious. In other words, there must be an underlying tort, or wrongful act. There can be civil conspiracy to breach fiduciary duty, civil conspiracy to defraud, civil conspiracy to defame, etc.

The elements of civil conspiracy are:

(1) The defendant(s) agreed, by words or conduct, to either accomplish an unlawful (tortious) goal, or to accomplish lawful goal by unlawful (tortious) means;

(2) One or more unlawful acts were performed in furtherance of that goal (or one or more acts – even if lawful – were performed toward the goal if the goal is itself unlawful);

(3) The plaintiff suffered damages; and

(4) The plaintiff’s damages were caused by the acts performed to accomplish the goal.

CJI-Civ. 27:1.

The tort of civil conspiracy is a powerful tool—really a net that can cast liability over a wide swath of potential defendants. But, just like RICO, because of its stigma and potentially broad scope, it can be overused, and should be pleaded with care and ample evidence.

Civil conspiracy can be an important tool to achieve collectability of any underlying tort in a business dispute. At Vail Law, we use an open-source, Litigation Checklist approach to develop claims and defenses tailored to each unique situation. Often these include breach of negligent misrepresentation, fraud, breach of contract, and exotic statutory causes of action. Contact Jeff Vail at (303) 600-3730 or to discuss your specific case.

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