The Virginia Business Litigation Blog
Under Virginia’s business-conspiracy statute, a successful plaintiff may recover three times the actual damages caused by the conspiracy: “Any person who shall be injured in his reputation, trade, business or profession by reason of a violation of § 18.2-499, may sue therefor and recover three-fold the damages by him sustained,” the statute reads. (See Va. Code § 18.2-500). But is a trial court required to triple the damages? The appellant in Sidya v. World Telecom Exch. Communs., LLC, 301 Va. 31 (2022) argued that the trial court had erred in treating the statute as mandatory when it is phrased in permissive language. The Virginia Supreme Court declined to address the issue, however, because it determined that the appellant had not assigned error to that specific question so it was obligated to affirm the award of treble damages regardless of whether the statute mandates or merely permits an award of treble damages. The issue arose again more recently in Fairfax Circuit Court, where Judge Oblon carefully interpreted the business-conspiracy statute and concluded that it does, in fact, mandate treble damages.
The case is Bala Jain, LLC v. Amit Jain. The plaintiff, Bala Jain, had sued Amit and Monika Jain for statutory business conspiracy as well as other claims. The jury awarded $5,429,608.77 in damages against each of the defendants, without any consideration of tripling that amount. The successful plaintiff then asked the court to triple that amount to over $16M, which it claimed was required by the terms of the statute. The trial court ultimately agreed and tripled the damages, holding it lacked discretion to avoid or reduce them.
The court first looked to prior court decisions to see how the statute had been interpreted. It found two Virginia Supreme Court opinions in which the question had come up, but neither one actually answered the question head-on. It then pulled up another circuit court case–Maximus, Inc. v. Lockheed Info. Mgmt. Sys. Co., 47 Va. 
Cir. 193 (Richmond Oct. 7, 1998)–in which the trial court judge found that the plain language of the statute required treble damages and did not just permit them.
The Fairfax court agreed with this approach. It noted that there are several other statutes in the Virginia Code dealing with treble damages. Some clearly mandate treble damages whereas other statutes clearly only permit such awards. Therefore, the court concluded, the Virginia legislature is aware of the difference and knows how to write laws that achieve their objective. With the business-conspiracy statute, the legislature could have easily inserted language to give the trial court mere discretion to award treble damages. Instead, the statute says that a plaintiff “may sue therefor and recover three-fold damages.”
The defendants argued that the permissive word “may” in that clause suggests that treble damages are discretionary. Taking the plain-language approach, the court disagreed. The “object of the sentence in the statute is the injured party, not a court,” it wrote. There, it’s the plaintiff who “may” opt to sue. It doesn’t say that a court “may” triple the damages. For that reason, it held that “treble damages are mandatory” and, based on that one simple ruling, promptly added over $10M to the plaintiff’s damages award.