Conspiracy
“A conspiracy is a combination of two or more persons by concerted action to accomplish an unlawful purpose or to accomplish some purpose by unlawful means.” Segal v. Rhumbline Inter., Inc., 688 So. 2d 397, 400 (Fla. 4th DCA 1997) (quotation omitted). “Each act done in pursuance of a conspiracy by one of several conspirators is an act for which each is jointly and severally liable.” Id. A conspiracy may be a criminal offense, a civil offense, or both. 2 Florida Torts § 51.23. However, the focus of this article is a cause of action for civil conspiracy.
Elements of Civil Conspiracy
“A civil conspiracy requires: (a) an agreement between two or more parties, (b) to do an unlawful act or to do a lawful act by unlawful means, (c) the doing of some overt act in pursuance of the conspiracy, and (d) damage to plaintiff as a result of the acts done under the conspiracy.” Charles v. Fla. Foreclosure Placement Ctr., LLC, 988 So. 2d 1157, 1159–60 (Fla. 3d DCA 2008). A complaint stating “a claim for civil conspiracy must contain clear, positive and specific allegations; general allegations of conspiracy are not sufficient.” Parisi v. De Kingston, 314 So. 3d 656, 661 (Fla. 3d DCA 2021).
The persons alleged to be members of a conspiracy must be shown to have shared a common purpose. See Buckner v. Lower Florida Keys Hospital Dist., 403 So. 2d 1025, 1029 (Fla. 3d DCA 1981). However, it is not necessary that all of the parties actually take action in furtherance of the conspiracy.
“Each coconspirator need not act to further a conspiracy; each ‘need only know of the scheme and assist in it in some way to be held responsible for all of the acts of his coconspirators.’” Charles, 988 So. 2d at 1160 (quotation omitted). In other words, “[e]ach co-conspirator ‘need only know of the scheme and assist in it in some way to be held responsible for all of the acts of his coconspirators.’” R.J. Reynolds Tobacco Co. v. Neff, 325 So. 3d 872, 884 (Fla. 4th DCA 2021) (quotation omitted).
The agreement between the conspiring parties can be express or implied. See Witmer v. Dep’t of Bus. & Prof’l Regulation, 631 So. 2d 338, 342 (Fla. 4th DCA 1994) (observing that an “[a]greement is a necessary element of the crime of conspiracy, which is defined as an express or implied agreement of two or more persons to engage in a criminal or unlawful act”). An express agreement would require evidence that the parties actually agreed to engage in the conspiracy. As one might imagine, proving an express agreement is difficult since it is unlikely any defendants would admit to one.
Thus, most civil conspiracy claims are premised on an implied agreement. In such cases, an agreement is implied by the actions of the defendant working together to accomplish a common goal. An implied agreement to conspire, as well as one’s participation in the conspiracy, can be proven through circumstantial evidence. See Donofrio v. Matassini, 503 So. 2d 1278, 1281 (Fla. 2d DCA 1987) (also stating that “[t]he existence of a conspiracy and an individual’s participation in it may be inferred from circumstantial evidence”).
Ordinarily, an Underlying Tort is Required
“There is a clear distinction between criminal and civil conspiracies.” 2 Florida Torts § 51.23. “In a prosecution for criminal conspiracy, the essence of the crime is the conspiracy itself; in an action for civil conspiracy, the substance is the civil wrong performed pursuant to the conspiracy that resulted in damage to the plaintiff.” Id. This distinction is important for purposes of this article since, “Florida does not recognize civil conspiracy as a freestanding tort.” Id.
Rather, “an actionable conspiracy requires an actionable underlying tort or wrong.” Raimi v. Furlong, 702 So. 2d 1273, 1284 (Fla. 3d DCA 1997). “The gist of a civil action for conspiracy is not the conspiracy itself, but the civil wrong which is done pursuant to the conspiracy and which results in damage to the plaintiff.” Blatt v. Green, Rose, Kahn & Piotrkowski, 456 So. 2d 949, 950 (Fla. 3d DCA 1984).
Stated another way, “[t]he conspiracy is merely the vehicle by which the underlying tort was committed, and the allegations of conspiracy permit the plaintiff to hold each conspirator jointly liable for the actions of the coconspirators.” Logan v. Morgan, Lewis & Bockius Ltd. Liab. P’ship, 350 So. 3d 404, 412 (Fla. 2d DCA 2022).
“Thus, a cause of action for civil conspiracy exists in the present case only if ‘the basis for the conspiracy is an independent wrong or tort which would constitute a cause of action if the wrong were done by one person.’” Blatt, 456 So. 2d at 951 (quotation omitted). Numerous wrongful actions have been found to support a cause of action for civil conspiracy.
For example, libel, unlawful damage to business reputation, interference with the right to practice a profession, and fraud have all been found to be sufficient. See Quigg v. Helm, 161 So. 55, 55 (1935); Kilgore Ace Hardware, Inc. v. Newsome, 352 So. 2d 918, 920 (Fla. 2d DCA 1977); Regan v. Davis, 97 So. 2d 324, 326–328 (Fla. 2d DCA 1957); Charles, 988 So. 2d at 1160. By statute, a conspiracy to commit a crime may also form the basis of an action for damages for civil conspiracy. See Fla. Stat. §§ 542.18, 542.19, 542.22, 772.103(4), 772.104.
The Exception Where a Conspiracy can be an Independent Tort
As noted above, generally, for a cause of action for civil conspiracy to be actionable, there must be some overtly tortious act performed by one person in pursuance of the conspiracy. If the act as performed by one person cannot be the subject of a civil action for damages, then it cannot be actionable if performed by many acting in concert. However, there is a limited exception.
“Although the general rule is that ‘an act which constitutes no ground of action against one person cannot be made the basis for a civil action for conspiracy,’ in certain circumstances mere force of numbers acting in unison may comprise and actionable wrong.” Peoples Nat’l Bank of Com. v. First Union Nat’l Bank, N.A., 667 So. 2d 876, 879 (Fla. 3d DCA 1996). “In essence … ordinarily there can be no independent tort for conspiracy.” Id.
“However, if the plaintiff can show some peculiar power of coercion possessed by the conspirators by virtue of their combination, which power an individual would not possess, then conspiracy itself becomes an independent tort. The essential elements of this tort are a malicious motive and coercion through numbers or economic influence.”
Peoples Nat’l Bank of Com., 667 So. 2d at 879.
An example of a case where the conspiracy was found to be an independent tort is Churruca v. Miami Jai-Alai, Inc., 353 So. 2d 547 (Fla. 1977). That case involved an action by a group of professional jai-alai players against their former employers. Id. at 548. The players had attempted an unsuccessful strike against the employers. Id. Subsequently, the players sought reemployment, but the employers as a group refused to rehire them. Id. The players sued the employers, alleging that they were engaging in a conspiracy to deprive them of their right to earn a livelihood. Id. at 549.
The Florida Supreme Court indicated that the employers were individually entitled to employ whomever they wished. Churruca, 353 So. 2d at 549. Moreover, they could agree in combination to refuse to hire employees as long as they believed those persons would be unsatisfactory. Id. However, if the employers acted maliciously to deprive the employees of their livelihood, they could be guilty of the independent tort of civil conspiracy. Id. As such, malicious blacklisting of employees constitutes the independent tort of conspiracy.
Conspiracies Involving Corporations or Other Legal Entities
“[B]y definition, a conspiracy requires an agreement between two persons. One cannot engage in civil conspiracy alone.” R.J. Reynolds Tobacco Co., 325 So. 3d at 884. The intra-corporate conspiracy doctrine provides that an agent or an employee cannot conspire with his or her corporate principal or employer. “This doctrine, originally a product of antitrust law, provides that ‘neither an agent nor an employee can conspire with his or her corporate principal or employer.’” Mancinelli v. Davis, 217 So. 3d 1034, 1036 (Fla. 4th DCA 2017) (quotation omitted).
Because a civil conspiracy requires ‘an agreement between two or more parties,’ ‘it is not possible for a single legal entity consisting of the corporation and its agents to conspire with itself ….’” Mancinelli, 217 So. 3d at 1037 (internal quotations omitted). “Thus, the intra-corporate conspiracy doctrine, as a general proposition, precludes the claim of conspiracy against individuals and their corporation for wholly internal agreements to commit wrongful or actionable conduct.” Id. There is, however, an exception to the general rule.
“Florida courts recognize the ‘personal stake’ exception to the intra-corporate conspiracy doctrine.” Mancinelli, 217 So. 3d at 1037. “Since a corporation is a legal entity which can only act through its agents, officers and employees, a corporation cannot conspire with its own agents unless the agent has a personal stake in the activities that are separate and distinct from the corporation’s interest.” Cedar Hills Props. Corp. v. E. Fed. Corp., 575 So. 2d 673, 676 (Fla. 1st DCA 1991).
“In other words, the agent must have ‘acted in their personal interests, wholly and separately from the corporation.’” Mancinelli, 217 So. 3d at 1037. “Thus, a ‘personal stake’ must be more than just personal animosity on the part of the agent.” Id. In the usual case, the agent or employee’s “personal stake” is his or her own financial profit from the actions.