A conspiracy to harm another’s business may be actionable under Virginia’s business-conspiracy statute, which provides for a cause of action where two or more people “combine, associate, agree, mutually undertake or concert together for the purpose of…willfully and maliciously injuring another in his reputation, trade, business or profession by any means whatever.” (See Va. Code §§ 18.2-499, 18.2-500). To prevail in a lawsuit for business conspiracy in Virginia, a plaintiff must prove (1) a combination of two or more people or entities for the purpose of willfully and maliciously injuring the plaintiff in his business; and (2) damage that resulted from the combination. A combination exists where there is concerted action designed to “effect a preconceived plan and unity of design and purpose.” (Schlegel v. Bank of America, 505 F. Supp. 2d 321, 326 (W.D. Va. 2007)). When the people being sued for conspiracy work for the same company, a question arises as to whether the first element–the requirement of “two of more people”–can be satisfied. The intra-corporate immunity doctrine holds that employees working for the same company are generally immune from conspiracy claims when acting on behalf of their employer. This is because a corporation acts through its employees, so the the employees’ actions are really the corporation’s actions and a corporation cannot conspire with itself. In other words, a business-conspiracy claim requires concerted action of at least two legally distinct persons or entities. A corporation can’t conspire with its employees, and its employees can’t conspire with each other if they are acting within the scope of their employment. As with most areas of the law, however, there are exceptions.
Some courts recognize an exception to the intracorporate immunity doctrine where the employee has an “independent personal stake” in achieving the goals of the conspiracy. Although the Virginia Supreme Court has not recognized any such exception, federal courts sitting in Virginia and applying Virginia law have applied it on several occasions. (See, for example, Greenville Publishing Company v. Daily Reflector, Inc., 496 F.2d 391 (4th Cir. 1974) (observing that an exception to the intracorporate immunity doctrine “may be justified when the officer has an independent personal stake in achieving the corporation’s illegal objective.”); Cvent, Inc. v. Eventbrite, Inc., 739 F. Supp. 2d 927 (E.D. Va. 2010)). Even if you’re in a court that does recognize a personal-stake exception, it will apply only to those cases in which the conspirator gained an independent personal benefit from the conspiracy. This benefit must be separate and distinct from the corporate benefit enjoyed by the employer.