GENERAL INTEREST II. Some Criminal or Unlawful Purpose or Some Lawful Purpose by a Criminal or Unlawful Means — A Necessary Element for Civil Conspiracy Claims The key and essential element for a common law conspiracy is the criminal or unlawful nature of the underlying conduct. 41 A complaint will be deficient unless sufficient facts alleging an unlawful act or unlawful purpose are present. 42 Typically, courts do not struggle with whether a plaintiff has made suffi-cient factual allegations of an unlawful act or unlawful purpose as such facts either are present in the complaint or not. The Supreme Court of Virginia has held that allegations accus-ing employees of forming a combination to breach their contractual, employment, fiduciary, and other duties to their employer, including the supposed unlawful conversion by them of their employer’s confidential and proprietary information, stated sufficient unlawful purposes. 43 Virginia courts have held that the following instances are not unlawful acts or unlawful purposes for purposes of establishing this element: • Truthful business competition; 44 • The enticement of a competitor’s employee to leave his employment so long as no means are used and the em-ployee’s employment is terminable at will; 45 and • Mere breach of contract 46 Where the unlawful act or unlawful purpose is the commis-sion of a tort, the Supreme Court of Virginia recently empha-sized that a plaintiff must establish that the underlying tort was committed to recover for a common law claim of civil conspir-acy. 47 In other words, “where ‘there is no actionable claim for the underlying alleged wrong, there can be no action for civil conspiracy based on that wrong.’” 48 III. For the Purpose of Willfully or Maliciously Injuring a Plaintiff in Reputation, Trade, Business, or Profession— A Necessary Element for Business Conspiracy Claims In a series of three cases involving the business conspiracy stat-ute, the Supreme Court of Virginia has altered the malice stan-dard applicable to business conspiracy claims from an actual malice standard to a legal malice standard. 49 Beginning in 1986 with the case of Greenspan v. Osheroff, 50 the Court adopted a “primary overriding purpose” standard, holding that: [W]hen the fact-finder is satisfied from the evidence that the defendant’s primary and overriding purpose is to injure his victim in reputation, trade, business or profession, motivated by hatred, spite, or ill-will, the element of malice required by Code § 18.2-499 is established, notwithstand-ing any additional motives entertained by the defendant to benefit himself or persons other than the victim. Six years later, in the case of Tazewell Oil Co. v. United Virginia Bank , 51 the Court appeared to move away from the primary and overriding purpose standard set forth in Osheroff . In a 4-3 decision, the Court held that sufficient evidence of a con-spiracy existed because, among other things, the defendant’s 24 action “exhibited a willful disregard for Tazewell’s rights.” 52 Surprisingly, the majority opinion in Tazewell made no men-tion of the “primary overriding purpose” standard set forth in Osheroff . 53 In his dissenting opinion, Judge Whiting chided the majority for ignoring Osheroff, stating that the “primary and overriding purpose” test should have been applied to deter-mine whether the defendants had acted with actual malice. 54 Three years later, the Court once again addressed wheth-er the conspiracy statute required proof of actual malice in Commercial Business Systems, Inc. v. BellSouth Services, Inc . 55 Definitively rejecting that requirement, the Court concluded that only proof of legal malice was necessary, i.e., that de-fendant acted intentionally, purposely, and without lawful justification. 56 Distinguishing Osheroff , the Court explained that its statement about a conspirator’s “primary and overrid-ing purpose” was made in the context where the conspirator had both legitimate and illegitimate motives for his actions and ruled that: 57 In any event, we do not think that, as a general proposition, the conspiracy statutes require proof that a conspirator’s primary and overriding purpose is to injury another in his trade or business. The statutes do not so provide, and such a requirement would place an unreasonable burden on a plaintiff. 58 Courts consistently have followed the legal malice standard set forth in Commercial Business Systems . 59 Further, in pleading a claim for business and common law conspiracy, keep in mind that a plaintiff must allege an unlawful act or unlawful pur-pose because “there can be no conspiracy to do an act the law allows.” 60 An additional requirement for this second element is proving that the injury was to “reputation, trade, business, or profession.” The Supreme Court of Virginia has held that §§ 18.2-499 and 500 “apply to business and property interests, not to personal or employment interests.” 61 Virginia federal courts have also made this business / personal distinction. 62 IV. Resulting in Damage to the Plaintiff — A Necessary Element for Common Law and Statutory Business Conspiracy Claims A. Actual, Treble and Punitive Damages Plaintiff must prove that they sustained damages from the al-leged interference in a conspiracy claim. 63 Business conspiracy claims have been a favorite claim for lawyers because § 18.2-500 allows for the recovery of treble damages. It provides that one who is “injured in his reputation, trade, business or pro-fession by reason of a violation of [section] 18.2-499 may sue therefore and recover three-fold the damages by him sustained . . . and without limiting the generality of the term, ‘damages’ shall include loss of profits.” 64 The Supreme Court of Virginia, in Advanced Marine Enterprises, Inc. v. PRC, Inc. , 65 also permit-ted the recovery of punitive damages and treble damages in the same action because “awards of punitive and treble damages www.vsb.org VIRGINIA LAWYER | AUGUST 2020 | VOL. 69 | GENERAL INTEREST FEATURES