59 60 61 See Simmons v. Miller, 261 Va. 561, 578, 544 S.E.2d 666, 677 (2001) (holding that the statute does not require the plaintiff to prove that “a conspirator’s primary and overriding purpose is to injure anoth-er in his trade or business”); Advanced Marine Enters., Inc. v. PRC, Inc. , 256 Va. 106, 117, 501 S.E.2d 148, 154-55 (1998) (holding that “Code §§ 18.2-499 and -500 do not require a plaintiff to prove that “a conspirator’s primary and overriding purpose is to injure another in his trade or business”); Galaxy Computer Servs., Inc. v. Baker, 325 B.R. 544, 555-56 (E.D. Va. 2005) (holding that statutes merely require proof of legal malice); Multi-Channel TV Cable Co. v. Charlottesville Quality Cable Operating Co. , 108 F.3d 522, 526-27 (4th Cir. 1997) (holding that Adelphia cable only need to prove that Charlottesville Quality Cable Operating company acted with legal malice when it interfered with Adelphia’s distribution rights); Williams v. Dominion Tech. Partners, 265 Va. 280, 292 (2003) (holding that employee did not breach his fiduciary duty of loyalty to his employer when he accepted employment with a competitor; and, thus did not act with legal malice); Xtreme 4x4 Ctr., Inc .v. Howery , 65 Va. Cir. 469, 475 (Roanoke Cty. 2004) (holding that alleged defamatory statements were merely matters of opinion, therefore, legal malice standard was not met); Feddeman & Co. v. Langan Assoc., 260 Va. 35, 45 (2000) (where court held that “the failure of legal justification ‘may include a breach of [one’s] fiduciary duty or assisting someone to breach their fidu-ciary duty.’”); Int’l Paper Co. v. Brooks, 63 Va. Cir. 494, 496-97 (Roanoke Cty. 2003) (holding that ‘for IPC’s business conspir-acy claims to survive, they must provide enough core facts to support the inference that Brooks acted with the requisite legal malice”); Atlas Partners II v. Brumberg, Mackey & Wall, PLC, No. 4:05cv0001, 2006 U.S. Dist. LEXIS 983, at *25 (W.D. Va. Jan. 6, 2006) (stating “that damaging plaintiffs may not have been their primary purpose is immaterial under Virginia law.”). R & D 2001, L.L.C. v. Collins , CL-2005-7021, 2006 Va. Cir. LEXIS 131, at *8-9 (Fairfax Cnty. 2006) (quoting Hechler Chevrolet v. General Motors Corp ., 230 Va. 396, 402, 337 S.E.2d 744 (1985)); Commercial Roofing & Sheet Metal Co. v. Gardner Eng’s, Inc., 60 Va. Cir. 384, 386 (Fairfax Cnty. 2002) (sustaining defen-dant’s demurrer to statutory conspiracy claim because plaintiff failed to allege an unlawful act or an unlawful purpose); Station #2, LLC v. Lynch, Case No. CL06-6106, 2008 Va. Cir. LEXIS 41, at *14 (Norfolk Cty. April 30, 2008) (sustaining demurrer to § 18.2-499 count as plaintiff did not make allegations suggesting that defendant used any illegal means); Dunlap v. Cottman Transmission Sys., LLC , 287 Va. 207, 215 (2014). Andrews v. Ring , 266 Va. 311, 319, 585 62 63 S.E.2d 780, 784 (2003) (a case where a former school board member filed a civil conspiracy charge against the local prosecutor and county building inspec-tor after the latter two sought criminal charges against him). The court did so based on the origin of those sections in the antitrust statutes and based on principles of statutory construction, which it applied to construe “reputation” in light of “trade, business or profession.” Id. See Buschi v. Kirven , 775 F.2d 1240, 1259 (4th Cir. 1985) (agreeing with the federal district courts, which “have consistently held that a right of action is ‘afforded [under these statutes] only when malicious conduct is directed at one’s business, not one’s person,’ and that the statute ‘focuses upon conduct directed at property, i.e., one’s business’ and applies only to ‘conspir-acies resulting in business-related damag-es.’”); see also Inman v. Klockner-Pentaplast of Am., Inc. , 467 F. Supp. 2d 642, 654 (W.D. Va. 2006) (holding, in a former employee vs. former employer case, that “Plaintiff ’s professional reputation and stock own-ership in his own company, however, are employment interests, not business interests. A plethora of cases reveal that employment interests are not covered by the Virginia civil conspiracy statutes.”); Warner v. Buck Creek Nursery, Inc. , 149 F. Supp. 2d 246, 267 (W.D. Va. 2001) (also a former employee vs. former employer case, stating that “In order to state a claim under Section 18.2-499, courts have held that the conspiracy must be one to injure the plaintiff ‘in his business.’”); P icture Lake Campground, Inc. v. Holiday Inns, Inc. , 497 F. Supp. 858, 863-64 (E.D. Va. 1980) (stating that “[t]he purpose of this statutory action is to provide a remedy for wrongful conduct directed towards one’s business, including injury to one’s property interest.”) (emphasis added); Campbell v. Bd. of Supvrs ., 553 F. Supp. 644, 645 (E.D. Va. 1982) (limiting claims under Va. Code § 18.2-499 to conduct which limits a “business” and not personal employment interests); Ward v. Connor , 495 F. Supp. 434, 439 (E.D. Va. 1980) (ruling that a plaintiff cannot recover under a statutory business claim for harm to his person-al reputation and not to any business interest), rev’d on other grounds, 657 F.2d 45 (4th Cir. 1981); Moore v. Allied Chem. Corp. , 480 F. Supp. 364, 375 (E.D. Va. 1979) (holding that “statutory coverage [under § 18.2-499] is afforded only when malicious conduct is directed at one’s Business, not one’s Person”); Loria v. Regelson, 39 Va. Cir. 536, 541 (Richmond Cty. 1996) (ruling that “[n]o conspiracy exists under § 18.2-499 of the Code when damage to professional reputation of an individual is alleged”). Gallop v. Sharp, 179 Va. 335, 19 S.E.2d 84 (1942); see also Saks Fifth Avenue, Inc. v. James, Ltd., 272 Va. 177, 189-90, 630 S.E.2d (2006) (concluding that the plaintiff failed to carry its burden of proof that the 64 65 66 67 68 69 70 71 72 defendants’ wrongful conduct proximately caused plaintiff ’s alleged damages); see Dunlap v. Cottman Transmission Sys., LLC, 287 Va. 207, 215 (2014). Va. Code § 18.2-500(A); L ynnwood Tech Holdings LLC v. NR INT. LLC , 2017 Va. Cir. LEXIS 52, *169 (where the court held that expected or projected profits are not a reasonable basis to estimate damages). 256 Va. 106, 501 S.E.2d 148 (1998). Id . at 124, 501 S.E.2d at 159; see also Wilkins v. Peninsula Motor Cars , 266 Va. 558, 561 (2003) (ruling that court did not err in awarding plaintiff treble and punitive damages). Jordan v. Hudson , 690 F. Supp. 502, 508 (E.D. Va. 1998), aff ’d, 879 F.2d 98 (4th Cir. 1998) (ruling that postmaster’s statutory business claim should be dismissed as a matter of law because he alleged his co-workers conspired to injure him in his trade and reputation, which caused him to be demoted. The section does not apply to employment interests); Inman v. Klockner-Pentaplast of Am., Inc., 467 F. Supp. 2d 642, 654 (W.D. Va. 2006) (ruling that the employee failed to state a claim under the statute because his professional reputation and stock ownership in the company, were employment interests and not business interests); Warner v. Buck Creek Nursery, Inc. , 149 F. Supp. 2d 246, 267-68 (W.D. Va. 2001) (holding that to the extent a plaintiff attempts to base his claim for conspiracy to his personal reputation or employment, as opposed to business interests, he fails to state a claim); Orantes v. Pollo Ranchero, Inc., 70 Va. Cir. 277, 281 (Fairfax Cnty. 2006) (holding that statute applies only to “conspiracies resulting in business related damages”); Almy v. Grisham , 273 Va. 68, 81(2007) (no cause of action for con-spiracy to intentionally inflict emotional distress); but see Fitzgerald v. Farrell , 63 Va. Cir. 1, 4 (Loudoun Cnty. 2003) (concluding that police officer’s business conspiracy claim survives a demurrer where his claim that two homebuyers and homeowner conspired to have him indicted because they were unhappy with the work he did on their houses as a private contractor was an injury to his reputation or profession); Hunter v. Simpson , 93 Va. Cir. 366, 369 (Henrico Cnty. 2016) Va. Code § 18.2-500(B). Kent Sinclair & Leigh B. Middleditch, Jr., Virginia Civil Procedure, § 2.26 (4th ed. 2003). Dove v. Dayton Town Council , 39 Va. Cir. 159, 169 (Rockingham Cnty. 1996). Chawla v. BurgerBusters, Inc., 255 Va. 616, 623, 499 S.E.2d 829, 833 (1998). Virginia Civil Procedure § 2.26 (4th ed. 2003) (quoting Luckett v. Jennings , 246 Va. 303, 307, 435 S.E.2d 400, 402 (stating that “the trial court is required to consider as true all material facts that are properly alleged, facts which are impliedly alleged, facts which may be fairly and justly in-ferred from the facts alleged”). 50 VIRGINIA LAWYER | AUGUST 2020 | VOL. 69 www.vsb.org