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Civil & Criminal Conspiracy

Conspiracy is a term used most frequently in the context of criminal law. Criminal conspiracy is a so-called inchoate offense, or a crime of seeking/preparing to commit another crime. In almost all jurisdictions, criminal conspiracy consists of an (1) agreement to commit a crime by (2) two or more persons and (3) an over act in furtherance of the conspiracy. An easy example would be an agreement by two individuals to rob a 7-11 and their subsequent purchase of ski-masks to hide their face during the actual robbery. There is an agreement to do something unlawful by more than one person and they took an affirmative step to further the underlying deed (more often than not, the affirmative step requirement is problematic).

Conspiracy, however, can also exist under civil law. The elements for civil conspiracy under Missouri law include: (1) Two or more people; (2) an object to be accomplished; (3) a meeting of minds on the object or course of action; (4) one or more unlawful overt acts; and (5) damages. Dickey v. Johnson, 532 S.W.2d 487, 502 (Mo. Ct. App. 1975). Part of the reason civil conspiracy is swept under the rug more is that it really isn’t litigated much. To give an example of civil conspiracy, say a court enters a temporary restraining order arising out of a non-compete agreement (See: Non-Compete Agreements). A person is, by court order, enjoined and commanded not to conduct business with his/her previous employer’s competitors. If, nonetheless, the individual contacts one of the competitors, the competitor knows about it, and the two transact business, then there is a strong chance that civil conspiracy has occurred.

What makes conspiracy somewhat complicated is that it is not a stand alone offense. Indeed, the very concept of conspiracy involves planning to do some other act that will result in liability. Because there are two-layers involved in any conspiracy litigation, it usually involves quite a bit of work to sort through the facts and establish whether or not liability exists — and if so, to what extent.

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