Civil Conspiracy continued from page 25 II. Intracorporate Immunity Doctrine The intracorporate immunity doctrine states that “there must two persons to comprise a conspiracy, and a cor-poration, like an individual, cannot conspire with itself.” 80 Thus, a plaintiff alleging that a corporation conspired with its agents acting within the scope of their employment, fails to state a proper claim because the alleged con-spiracy would involve only one entity. 81 The intracorporate immunity doctrine does not apply when the agent acts outside the scope of his or her agency relationship at the time of the wrong-ful conduct. 82 Conclusion Common law and statutory business conspiracy claims represent an import-ant piece of the landscape of Virginia business litigation. Claims brought under Virginia’s business conspiracy statute will remain a favorite among trial lawyers because, if successful, they allow for the recovery of treble damag-es and attorneys’ fees. Nonetheless, at-torneys should not blindly allege civil conspiracy claims, whether under the common law or Virginia Code §§ 18.2-499 and -500, for the mere hope of ob-taining enhanced remedies. Instead, as with any claim, counsel should ensure that necessary facts exist to allege these claims. Virginia lawyers, however, can expect to see many more cases brought under Virginia’s business conspiracy statute because of the evolution of the malice stan-dard from actual to legal as set forth in the Supreme Court of Virginia’s decisions in Greenspan, Tazewell Oil Co. and Commercial Business Systems, Inc. The ruling that a plaintiff must merely prove legal malice instead of actual has lowered the evidentiary burden of proving a claim under the statute, which together with the broad-er categories of potentially recoverable damages, likely will generate more civil conspiracy claims. R Endnotes 1 84 Va. 927, 934, 6 S.E. 620, 624 (1888) (affirming conviction for conspiracy to boycott a business). 2 Id. 3 160 Va. 845, 854, 171 S.E. 255, 258-59, cert. denied, 260 U.S. 659 (1933) (citations omitted). 4 Joseph E. Ulrich & Killis T. Howard, Injuries to Business under the Virginia Conspiracy Statute: A Sleeping Giant , 38 Wash. & Lee L. Rev. 377 (1981). 5 Id. 6 Id. at 378. 7 See generally, Sexton, J. Scott, What’s in a Word? The Tortured Life of the Virginia Conspiracy Statute Va. Code §§ 18.2-499 and -500, VSB Litigation News (Spring 2004) (providing an excellent discussion of statutory business conspiracy claims in Virginia). 8 Va. Code § 18.2-500(A); see also AV Auto., LLC v. Preske , No. CL 2018-7749, 2019 Va. Cir. LEXIS 27 (Fairfax Feb. 11, 2019). 9 Va. Code § 18.2-499(B); see also Waytec Elecs. Corp. v. Rohm & Haas Elec. Materials, LLC , 459 F. Supp. 2d 480, 492 (W.D. Va. 2006) (concluding that “to prove attempted business conspiracy, a plaintiff must prove that a person attempted to procure participation or cooperation of an-other to enter into a business conspiracy”); see also Schur v. Sprenkle, 84 Va. Cir. 418 (Richmond Cty. 2012). 10 Commercial Bus. Sys., Inc. v. BellSouth Servs., Inc. , 249 Va. 39, 48, 453 S.E.2d 261, 267 (1995); Glass v. Glass , 228 Va. 39, 47, 321 S.E.2d 69, 74 (1984). 11 Almy v. Grisham , 273 Va. 68, 81, 639 S.E.2d 182, 189 (2007); Commercial Bus. Sys. , 249 Va. at 48, 453 S.E.2d at 267 (stating that “[t]he foundation of a civil action of con-spiracy is the damage caused by the acts in furtherance of the conspiracy”) (citations 12 13 14 omitted). See Efessiou v. Efessiou , 41 Va. Cir. 142, 146 (Fairfax 1996) (sustaining demurrer to conspiracy claim for alleged combination to affect a fraudulent conveyance); see also, Fid. Nat’l Title Ins. Co. v. Wash. Settlement Grp., LLC , 87 Va. Cir. 77 (Fairfax 2013) (same). Commercial Bus. Sys ., 249 Va. at 48, 453 S.E.2d at 267 (citing Middlesboro Coca-Cola v. Campbell , 179 Va. 693, 702, 20 S.E.2d 479, 482 (1942)); see Ameur v. Gates , 950 F. Supp. 2d 905, 918 (E.D. Va. 2013) (questions regarding the scope of employment certification that fall under the Westfall Act are decided by the court and not the jury even if relevant state law would provide a jury trial on such issues). CaterCorp., Inc. v. Catering Concepts, Inc., 246 Va. 22, 28, 431 S.E.2d 277 (1993); see also Allen Realty Corp. v. Holbert , 227 Va. 441, 449, 318 S.E.2d 592, 596 (1984) (“To recover in an action for conspiracy to harm a business, the plaintiff must prove (1) a combination of two or more persons for the purpose of willfully and maliciously injuring plaintiff in his business, and (2) resulting damage to plaintiff.”); Virginia Vermiculite, Ltd. v. W.R. Grace & Co.-Conn. , 144 F. Supp. 2d 558, 601 (W.D. Va. 2001), aff ’d sub nom. Virginia Vermiculite Ltd. v. Historic Green Springs, Inc. , 307 F.3d 277 (4th Cir. 2002) (“The elements of a statutory conspiracy claim under the Virginia Conspiracy Act are: (1) concerted action (2) legal malice; and (3) causal-ly-related injury.”); accord Multi-Channel TV Cable Co. v. Charlottesville Quality Cable Operating Co. , 108 F.3d 522, 526 (4th Cir. 1997) (“CQC was liable for statu-tory conspiracy if clear and convincing evidence showed that: (1) CQC attempted to conspire with one or more of the other defendants to harm Adelphia; (2) CQC 15 16 17 18 19 acted with legal malice towards Adelphia; and (3) the conspiratorial actions of CQC and one or more of the other defendants caused Adelphia to suffer damages.”); see also T.G. Slater & Son v. Donald P. & Patricia A. Brennan LLC, 385 F.3d 836, 845 (4th Cir. 2004) (“A claim for statutory civil conspiracy under Virginia law must allege (1) two or more persons combined, associated, agreed, or mutually undertook together to (2) willfully and maliciously injure another in his reputation, trade, business, or profession.”); Virginia Model Jury Instructions – Civil , No. 40-300 (2008). Va. Code § 18.2-499(B). Id. § 18.2-500. Multi-Channel TV Cable Co. , 108 F.3d at 526; Simmons v. Miller, 261 Va. 561, 578, 544 S.E.2d 666, 677 (2001); see also Dunlap v. Cottman Transmission Sys., LLC, 287 Va. 207, 216, 754 S.E.2d 313, 318 (2014). Bay Tobacco, LLC v. Bell Quality Tobacco Prods., LLC , 261 F. Supp. 2d 483, 499 (E.D. Va. 2003) (“the plaintiff must first allege that the defendants combined together to effect a ‘preconceived plan and unity of de-sign and purpose, for the common design in the essence of the conspiracy’”); Hecht v. Am. Bankers Ins. Co. , No. 3:04cv00098, 2005 U.S. Dist. LEXIS 25883, at *15 (W.D. Va. Oct. 21, 2005) (concluding that “there is no evidence that Griffin suggested ABIC withdraw from the seminar, let alone agreed or concerted in that action. Indeed, it is clear from the facts that any conspiracy claim against Griffin himself would fail. Hence, there is no evidence that a conspiracy existed, and plaintiff ’s claim necessarily fails on this point”). Schlegel v. Bank of America, N.A ., 505 F. Supp. 2d 321, 325 (W.D. Va. 2007) (citing Va. Code § 18.2-499); see also Bumgarner v. Fischer, No. CL 18-4351, 2019 Va. Cir. LEXIS 3, at *3-4 (Richmond Cty. Jan. 17, 48 VIRGINIA LAWYER | AUGUST 2020 | VOL. 69 www.vsb.org