What is Civil Conspiracy? Elements
By: Minc Law
Tags: Law, Slander, Defamation, Civil Rights, Legal

By: Aaron Minc, Principal & Founder at Minc Law

Civil conspiracy is an agreement between two or more parties to commit an unlawful or wrongful act that injures a third party. However, civil conspiracy claims can be difficult to prove and may not be appropriate in all cases.

Below, we examine the elements of a civil conspiracy claim, who can be held liable for civil conspiracy, the difference between civil and criminal conspiracy, the potential damages a plaintiff may recover for civil conspiracy, similar legal claims to civil conspiracy, and how to choose a civil conspiracy attorney.

What is Civil Conspiracy?

Civil conspiracy occurs when two or more people agree to engage in an activity to accomplish an unlawful purpose or goal and cause injury to another as a result. A civil conspiracy can exist when:

Conspirators agree to work to achieve an unlawful goal, or Conspirators agree to achieve a lawful goal by unlawful means.

Understandably, civil conspiracy may be commonly confused with its criminal counterpart, criminal conspiracy. That is because they are very similar legal wrongs and are made up of almost the same legal elements. However, civil conspiracy involves a civil wrong, or tort, while criminal conspiracy involves a criminal act.

Civil conspiracy is not a standalone legal claim. This means a plaintiff cannot only sue for civil conspiracy. Instead, civil conspiracy must accompany another tort.

At its core, civil conspiracy is an agreement between two or more parties to commit an unlawful act. Therefore, there must be an unlawful act on which to base the civil conspiracy claim.

In other words, a civil conspiracy tort is premised on the existence and probability of a separate tort that is actionable, even absent the existence of a conspiracy. 16 Am Jur 2d Conspiracy § 52.

Below, we address two civil conspiracy cases to illustrate how a claim for civil conspiracy accompanies a separate tort.

Civil Conspiracy Examples

Franklin Music Co. v. Am. Broadcasting Companies

The defendant was a music company that allegedly hired the president of a competing music company for two improper purposes. First, the defendant music company wanted the president to induce key employees to leave the competing company. Second, the president could disclose the competing company’s trade secrets.

When the plaintiff company brought suit, it could assert multiple tort claims, such as trade libel, disclosure of trade secrets, and interference with business contacts. But because these torts were the result of a plan created by the departing president and defendant music company, Pennsylvania law allowed the plaintiff to also bring a civil conspiracy claim. Franklin Music Co. v. Am. Broad. Cos., 616 F.2d 528 (3rd Cir. 1979).

Rex Distributing Co. v. Anheuser-Busch

The plaintiff, in this case, was Rex Distributing Company (Rex), a wholesaler of Anheuser-Busch (AB) beer. Rex wanted to sell its business, but Anheuser-Busch claimed that it had a contractual right to decide who Rex’s buyer should be.

When Rex found a buyer, AB stepped in to stop the sale so that AB could force Rex to sell its business to Mitchell Distributing Company (Mitchell) instead. Rex claimed that AB did this for two reasons.

First, AB wanted to reward Mitchell for agreeing with AB’s request to not sell ‘Yuengling & Son’ beer. Second, AB wanted to punish Rex for agreeing to sell a competitor’s beer despite AB asking Rex not to do so.

Rex eventually agreed to sell its business to Mitchell instead of Rex’s original buyer, costing Rex more than $3 million. Rex filed suit, and believing Mitchell and AB were working together, Rex alleged common-law contractual tortious interference and civil conspiracy against both AB and Mitchell.

Mitchell argued that Rex’s civil conspiracy tort claim should fail because there was no underlying tort. The trial court agreed and dismissed Rex’s civil conspiracy claim.

On appeal, the Mississippi Supreme Court reversed, concluding that Rex’s civil conspiracy claim was based on a violation of the Mississippi Beer Industry Fair Dealing Act, which regulated the legal relationships between beer retailers, wholesalers, and manufacturers. Rex Distrib. Co. v. Anheuser-Busch, LLC, 271 So. 3d 445, 455 (Miss. 2019).

Elements of a Civil Conspiracy Claim

A defendant is liable for the tort of civil conspiracy if the plaintiff can successfully prove the following four elements:

Below, we address each of these elements and how a plaintiff can prove them in a civil suit.

Existence of an Agreement

An agreement can only be entered into deliberately; there is no accidental agreement in a civil conspiracy claim. Adcock v. Brakegate, LTD, 164 Ill. 2d 54, 64 (Ill. 1994). However, the agreement can be either express or implied.

What is an Express Agreement?

An express agreement exists if the parties affirmatively agree to the conspiracy. Imagine the following conversation, set of emails, or text exchange between two people:

Defendant One: “Hey, Defendant Two. I know you are under a non-disclosure agreement not to tell anyone what the secret ingredient is in that new food product your employer is about to release. But will you tell me what that secret ingredient is if I pay you $10,000?”

Defendant Two: “Sure thing, but I only accept cash.”

While evidence of an express agreement is useful in litigating civil conspiracy claims, that evidence often does not exist. Luckily, “[a]n express agreement among all conspirators is not a necessary element of civil conspiracy as long as the participants in the conspiracy share a general objective or the same motives for desiring the same conspiratorial result.” Issac v. Crichlow, 63 V.I. 38, 65 (2015) (citing Fisher v. Borough of Doylestown, №02–4007, 2003 U.S. Dist. LEXIS 23943, at *8 (E.D. Pa. Dec. 10, 2003).”

This is where the implied agreement comes in, although it is harder for the plaintiff to prove.

What is an Implied Agreement?

An implied agreement exists when there is a common understanding or design to commit a tort or unlawful act between two or more people. Because direct proof of an agreement can be unavailable, proof of the agreement is usually shown by circumstantial evidence, such as meetings, shared motives, or conversations between the alleged co-conspirators. Restatement (Third) of Torts: Liab. for Econ. Harm § 27 (2020). See also United States v. Pressler, 256 F.3d 144, 149 (3d Cir. 2001).

The conspirators must have a shared objective and agree to do their part to achieve that objective. Each conspirator must have intended to bring about the tortious injury that was the subject of the agreement. Restatement (Third) of Torts: Liab. for Econ. Harm § 27 (2020).

Let us go back to the above conversation between Defendants One and Two and alter the dialogue to show what an implied agreement might look like in a conversation, email exchange, or text thread.

Defendant One: “Hey, Defendant Two. I know you are under a non-disclosure agreement not to tell anyone what the secret ingredient is in that new food product your employer is about to release. But I also know you hate your employer and what better way to stick it to them than tell me what the secret ingredient is.”

Defendant Two: “Well, I really do hate my boss and I have access to the computer file that identifies the secret ingredient. If the secret ingredient became known to you or anyone else, that would not bother me at all.”

Several days later, Defendant One receives the recipe from an anonymous person. Additionally, the computer system of Defendant Two’s employer shows that Defendant Two accessed the computer file that lists the secret ingredient within hours of Defendant Two’s conversation with Defendant One.

The above conversation does not explicitly prove that Defendants One and Two had an agreement. But this hypothetical conversation, along with the subsequent actions, shows that an agreement can be implied.

There is evidence of related facts or circumstances from which we can draw a reasonable and logical inference that the activities of the co-conspirators could not have been carried on except as the result of a preconceived scheme or common understanding. United States v. Ellis, 595 F.2d 154, 160 (3d Cir. 1979).

Put another way, the plaintiff can show circumstantial evidence from which a reasonable person could infer that the co-conspirators could only have been acting in concert to achieve a common, previously agreed-upon goal.

By way of another example, a California court held that a driver and passenger could be held liable under a civil conspiracy theory for violating a civil statute prohibiting excessive speeding. In the case of Navarrete v. Meyer, 237 Cal. App. 4th 1276, 1293–1294 (Div. 1, 2015), there was evidence proffered that the passenger encouraged the driver to speed excessively and, by complying, an agreement could have been formed.

A jury could reasonably find that the driver and passenger had an implied agreement where the driver would speed excessively and knew that it was at the request of the passenger and for an unlawful purpose.

To Commit a Tort or Other Unlawful Activity

Because a civil conspiracy claim must be premised on another underlying civil claim, the plaintiff must additionally prove that an underlying tort was committed. If there is no valid, underlying claim, then the civil conspiracy claim fails. See e.g. Lamar Co. v. City of Fremont, 278 Neb. 485 (2009); Restatement (Third) of Torts § 27, cmt b (“even the most eager efforts at conspiracy produce no civil liability unless a tort was committed in an effort to carry it out”).

Therefore, a plaintiff must allege in the complaint and ultimately prove the elements of an underlying tort were committed by the defendant. This underlying tort must usually be an intentional tort or breach of some other state civil statute. However, some states do allow civil conspiracy claims to be premised on a negligence claim. See Navarrete v. Meyer, 237 Cal. App. 4th 1276, 1293 n. 5 (Div. 1, 2015).

An Act in Furtherance of the Agreement

The tortious act which injured the plaintiff must have been committed in furtherance of the conspiracy.

Recall Defendants One and Two from the earlier hypothetical. An act in furtherance of the agreement might be shown with either Defendant Two accessing the computer files or Defendant One using the information provided by Defendant Two.

If the act which injured the plaintiff was not itself tortious or did not otherwise relate to the overall conspiracy, then the defendants will not be liable for a civil conspiracy tort.

The Plaintiff Suffered Harm

The essence of a civil conspiracy claim is the damage inflicted on a plaintiff because of unlawful acts taken in furtherance of the conspiracy. Therefore, it is crucial to prove how the tortious act committed in furtherance of the conspiracy caused an injury to the plaintiff.

One way this can be shown is by lost profits. For instance, Defendant Two’s employer in the earlier hypothetical might have lost profits because the secret recipe was leaked to Defendant One.

Who Can Be Held Liable For Civil Conspiracy?

If a plaintiff can prove each of the aforementioned four elements, they will succeed in their civil conspiracy claim. Any conspirator to the civil conspiracy may be held liable for the plaintiff’s damages. But what is a conspirator?

A conspirator is any person who agreed to the underlying unlawful scheme to commit a tort or tortious activity. Not every conspirator needs to have committed an act in furtherance of the conspiracy to be held liable for a civil conspiracy claim.

If the conspirator agreed to the scheme to commit a tort, but a co-conspirator committed the unlawful acts, the conspirator will be held liable for those acts as though they committed them personally.

After the conspiracy is formed, all members of the conspiracy are jointly and severally liable for acts of co-conspirators done in furtherance of the conspiracy. McIntee v. Deramus, 313 Ga. App. 653, 656 (2012). See also 16 Am. Jur. 2d Conspiracy § 57.

To prove that a defendant is a co-conspirator, a plaintiff must show that the defendant had:

Knowledge of the unlawful objective of the agreement (i.e. to commit a tort); and

Intended to aid in achieving that objective.

16 Am. Jur. 2d Conspiracy § 53; See also Kruse v. Repp, 2020 U.S. Dist. LEXIS 51221, * (S.D. Iowa, March 20, 2020) (“civil conspiracy requires an agreement between two persons to commit a wrong against another and a mutual intent to commit the act that causes the injury”).

But a co-conspirator who joins a conspiracy after some tortious acts were already committed may not be liable for the previous tortious acts. Restatement (Third) of Torts: Liab. for Econ. Harm § 27 (2020).

Imagine Individuals A and B agree to commit car insurance fraud. One of the first things they do is get Individual A to steal a car to use in the scheme. After stealing the car, Individual C gets recruited to help with the plan.

At this point in time, Individuals A and B are both liable for car theft due to joint and several liability. However, Individual C is not liable for the theft as he joined in on the car insurance fraud plan after the car theft took place.

Difference Between Civil & Criminal Conspiracy Claims

The elements of criminal and civil conspiracy claims are very similar. But there is a key difference between the two. In a criminal conspiracy claim, the existence of an agreement is the most important aspect. Whereas the existence of damages is the most important aspect of a civil conspiracy claim. (16 Am Jur 2d Conspiracy § 53) See also De Vries v. Brumback, 53 Cal. 2d 643, 649 (1960); Rex Distrib. Co. v. Anheuser-Busch, LLC, 271 So. 3d 445, 455 (Miss. 2019).

Another major difference between civil and criminal conspiracy is that criminal conspiracy concerns an agreement to commit an act that is a violation of a criminal statute. In contrast, the agreement in a civil conspiracy deals with the commission of a non-criminal, but unlawful act.

What Are the Possible Damages For Civil Conspiracy?

A conspirator and co-conspirator may be both or individually liable for the plaintiff’s injuries. This is true, even if one of the conspirators did not commit the act that hurt the plaintiff.

This means a co-conspirator can be held liable for injuries inflicted on a plaintiff even if the co-conspirator did not actively engage in the acts which caused the injury. United Gen. Title Ins. Co. v. Malone, 289 Neb. 1006, 1026–1027 (2015); 16 Am. Jur. Conspiracy § 55.

Like most other torts, the tortious or wrongful acts taken as part of the conspiracy must have proximately caused the damage suffered by the plaintiff. Future Group, II v. Nationsbank, 324 S.C. 89, 100 (1996). Another similarity to other torts is that legal relief for a civil conspiracy cause of action comes in the form of monetary damages.

If a defendant is found to be liable for civil conspiracy, then they may be required to pay for all foreseeable injuries to the plaintiff, including punitive damages. Punitive damages are not commonly awarded, and usually only come into play as punishment for a defendant that acted with egregious or malicious behavior when committing an unlawful act. Punitive damages are also awarded to deter defendants from engaging in unlawful conduct.

Even if a plaintiff fails to prove the elements of their civil conspiracy claim, they may still be entitled to damages as a result of the underlying tort committed against them. For instance, say a plaintiff fails to prove the defendants had an agreement to defraud the plaintiff. If the plaintiff can still prove all the elements of fraud existed as applied to at least one defendant, the plaintiff can still recover damages for the fraud claim.

Similar Legal Claims to Civil Conspiracy

If the facts supporting a claim for civil conspiracy exist, it is also possible that there is a claim for another tort. Two such legal theories include:

Aiding and abetting; and

Vicarious liability.

Aiding and Abetting

A person is generally liable for aiding and abetting where they know of the tort or wrongful conduct to be committed and provide substantial assistance to achieve the commission of the tort.

Aiding and abetting is distinct from civil conspiracy in that the defendant must have committed acts substantially furthering the underlying wrong. Civil conspiracy only requires that the defendant was a part of the overall agreement. So co-conspirators are liable for civil conspiracy even if their involvement was limited to only agreeing to the plan.

The single most important factor differentiating aiding and abetting from civil conspiracy is the amount of assistance the defendant provides in helping the other defendant complete the unlawful act.

A party could be held guilty for aiding and abetting as well as being part of a civil conspiracy. But not every civil conspiracy claim will give rise to an aiding and abetting claim.

Vicarious Liability

Vicarious liability shares a major similarity with civil conspiracy in that it is derivative of another tort and allows the plaintiff to obtain a recovery from someone else besides the person who was directly involved in the plaintiff’s harm.

One of the most frequent settings where vicarious liability comes into play is in the employment context, between employer and employee. When an employee commits a tort within the scope of employment, the employer may also be held liable for that employee’s wrongdoing.

Vicarious liability can apply even if the subordinate party acted without the supervisor’s knowledge. For example, if a restaurant employee injures a customer, the restaurant owner could also be liable for the customer’s injuries even if they had zero involvement in the incident that caused the injury.

Despite their similarities, civil conspiracy and vicarious liability have a few differences. First, vicarious liability requires a formal relationship between the multiple defendants. A supervisory party may be liable for the actions of a subordinate, based on a legally recognized relationship between the two parties. Black’s Law Dictionary (11th ed. 2019).

Put another way, vicarious liability exists when person A has a supervisory relationship with person B and as a result, person A is legally responsible for person B’s actions, even if person A did not expressly tell person B to do something.

Second, civil conspiracy requires all of the conspirators to have knowledge of the plan and agree to the plan. There is no knowledge requirement for vicarious liability.

How to Choose a Civil Conspiracy Attorney

Finding the right civil conspiracy attorney to take on your case is a comparable process to finding any other attorney, whether it is for a contract dispute, personal injury, or online defamation.

In the context of internet defamation, civil conspiracy claims can become particularly relevant where multiple parties are at fault, but only one defendant actually committed acts planned or encouraged by others. But the laws surrounding civil conspiracy torts vary significantly from state to state.

For example, some states do not recognize civil conspiracy as a separate tort, but as a form of vicarious liability whereby one defendant can be held liable for the actions of another. See Kidron v. Movie Acquisition Corp., 40 Cal. App. 4th 1571, 1581 (2nd Dist. App., 1995); Mamoon v. Dot Net Inc., 135 A.D.3d 656, 658 (N.Y. 1st Dept., 2016).

Even jurisdictions that do recognize civil conspiracy as a separate tort recognize that it “exists as a cause of action to hold non-acting parties responsible.” Rex Distrib. Co. v. Anheuser-Busch, LLC, 271 So. 3d 445, 455 (Miss. 2019); Adcock v. Brakegate, LTD, 164 Ill. 2d 54, 62 (Ill. 1994).

For example, in Ohio, successfully alleging civil conspiracy requires the plaintiff to prove the following elements:

And in California, civil conspiracy requires the plaintiff to provide evidence that “the defendant had knowledge of and agreed to both the objective and the course of action that resulted in the injury, that there was a wrongful act committed pursuant to that agreement, and that there was resulting damage.” Berg & Berg Enter. V Sherwood Partners, 131 Cal.App.4th 802 (Ca. Ct. App. 2005).

Each state will typically have its own civil conspiracy laws in their books, although they may have slightly different ways of defining civil conspiracy as set out by state court legal decisions. When hiring an attorney, consider whether they have experience with the specific laws of your state and know how to asset the same type of underlying tort claims.

States can also differ in the time they provide plaintiffs to bring their lawsuits. Sometimes, the civil conspiracy claim may need to be brought within one year. But other times, plaintiffs could have up to two or three years to file their lawsuit.

But why the various deadlines? It is because many states that recognize the tort of civil conspiracy assign it a statute of limitations that coincides with the underlying tort on which it is based. E.g., Agar Corp. v. Electro Circuits International, LLC, 580 S.W.3d 136 (Tex. 2019); Sterenbuch v. Goss, 266 P.3d 428 (Colo. Ct. App. 2011); McFaddin v. H. S. Crocker Co., 219 Cal. App. 2d 585 (Ca. Ct. App. 1963).

How to Find a Civil Conspiracy Attorney

Say you wanted to bring a civil conspiracy claim that involved battery and your state has a two-year statute of limitations for a battery cause of action. In this hypothetical, you would also have two years to file your lawsuit for civil conspiracy.

Should you decide that you want to speak with an attorney about helping you with a possible civil conspiracy claim in your particular state, how can you find an experienced and trustworthy attorney? There are several ways to find a civil conspiracy attorney.

First, you can use Google or another online search engine and search for a civil conspiracy lawyer in your general geographic location.

Second, you can ask for a referral from a professional contact, such as an accountant or business owner. Many civil conspiracy claims relate to business disputes.

Third, you can speak to friends and family members to see if they have any recommendations on a lawyer who handles civil litigation, especially litigation of a commercial nature.

Fourth, you can check with your local bar association and ask for a referral list for attorneys who have any experience in civil conspiracy or business litigation. Most bar associations will have a special list of attorneys to be contacted if a prospective client asks about the services they offer.

Minc Law Attorney Search Tip: Each state will have its own bar association, but most counties will also have their own bar associations. And if you live in a major city, there is a very good chance that a bar association exists for attorneys who practice in that city.

What to Look For in a Civil Conspiracy Attorney

Once you compile a list of potential attorneys to speak with, you will want to narrow your selection to just one lawyer. When figuring out who to hire, there are several traits you will want to look for in the prospective lawyer you want to hire, including:

Experience,

Openness, and

Communication.

Experience applies to both familiarity with civil conspiracy claims as well as the underlying torts that give rise to civil conspiracy claims. Ideally, you want to hire an attorney who has plenty of experience in litigation concerning both the civil conspiracy and derivative civil cause of action.

Openness refers to how transparent the attorney is about what they do and how they operate. This does not mean they need to show you the firm’s financial data or explain every little detail in how they prepare a pleading. But if you ask them how the billing process works or why they take a particular approach in court, you should be wary of evasive answers or answers that do not give much detail.

Attorneys are very busy, but they should still make time to answer your questions and respond promptly when you reach out to them. But some attorneys respond more quickly than others. You will need to decide how important it is to quickly get case updates or have your attorney return your call. And depending on what you require from your lawyer, find an attorney who can provide that level of communication.

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If you believe that you or your business is a victim of a civil conspiracy involving the internet, contact the experienced internet attorneys at Minc Law to evaluate your case. You can schedule your free, initial no-obligation consultation by calling us at (216) 373–7706, speaking with a Chat representative, or filling out our online contact form.