Civil Conspiracy: An Analysis of Common Law and Statutory Business Conspiracy Claims Under Virginia Law by David N. Anthony, Timothy J. St. George, and H. Scott Kelly Virginia recognizes two tort claims for civil conspiracy — one under the common law and the second under Virginia Code §§ 18.2-499–500. This article discusses these two causes of action which are often the subjects of business litigation. Background As early as 1888, in the case of Crump v. Commonwealth , the Supreme Court of Virginia recognized the viability of a claim for a conspiracy to injure a person in his trade or occupation. 1 In Crump , members of a union attempted to compel a mercantile business to become a union office and employ members of the union. When the mercantile business refused, the union members attempted to de-stroy its business through boycotts and threat-ening patrons. In upholding the criminal convictions of the union members, the Court recognized that “a conspiracy or combination to injure a person in his trade or occupation is indictable.” 2 In 1933, the Supreme Court of Virginia in Werth v. Fire Companies’ Adjustment Bureau 3 acknowledged the ability for a plaintiff to sue at common law for civil conspiracy in noting that: A conspiracy consists of an unlawful combination of two or more persons to do that which is contrary to law, or to do that which is wrongful and harmful towards another person. It may be punished crimi-nally by indictment, or civilly by an action on the case in the nature of conspiracy if damage has been occasioned to the person against whom it is directed. It may also consist of any unlawful combination to carry out an object not in itself unlawful by unlawful means. The essential ele-ments, whether of a criminal or actionable conspiracy, are, in my opinion, the same, though to sustain an action special damag-es must be proved. In 1964, the General Assembly enacted Virginia’s business conspiracy statute. The statute is similar to an old Wisconsin statute, but its remedies are stricter. 4 Surprisingly, no legislative history exists for the statute. 5 Due to the year of its enactment and its similarity to statutes passed in other states around the same time, many refer to it as the “Anti-Sit-In” Act. 6 The business conspiracy statute is found in sections 18.2-499 and 18.2-500 of the Virginia Code — the criminal chapter of the Virginia Code. 7 Under section 18.2-500, “[a]ny person who [is] injured in his reputation, trade, busi-ness or profession by reason of a violation of § 18.2-499” may seek relief in a civil court. In turn, Virginia Code § 18.499 imposes liability on: Any two or more persons who combine, associate, agree, mutually undertake or concert together for the purpose of (i) willfully and maliciously injuring another in his reputation, trade, business or pro-fession by any means whatever or (ii) will-fully and maliciously compelling another to do or perform any act against his will, or preventing or hindering another from doing or performing any lawful act . . . The statute specifically allows for the re-covery of treble damages and “the costs of suit, including a reasonable fee to plaintiff ’s counsel.” 8 The statute also provides for damag-es if a plaintiff proves an attempted business conspiracy. 9 Stating a Claim for Common Law Conspiracy Under Virginia Law Under Virginia law, the prima facie elements for common law conspiracy are: 1. A combination of two or more persons; 2. To accomplish, by some concerted action; 3. Some criminal or unlawful purpose or some lawful purpose by a criminal or unlawful means; and 4. Resultant damage caused by the defen-dant’s acts committed in furtherance of the conspiracy. 10 www.vsb.org 22 VIRGINIA LAWYER | AUGUST 2020 | VOL. 69 | GENERAL INTEREST FEATURES