Legal Memorandum: Civil Conspiracy Claims in WI

Issue: What are the pleading and proof requirements for a civil conspiracy claim in Wisconsin?

To properly plead a civil conspiracy the plaintiff is required to allege substantially more than legal conclusions.  Recently, the Wisconsin Supreme Court held that the United States Supreme Court’s decision in Bell Atl. Corp. v. Twombly, 550 U.S. 544, (2007), is “consistent with our precedent.”  Data Key Ptrs. v. Permira Advisers LLC, 356 Wis. 2d 665, 680 (Wis. 2014).  In Data Key, the court noted that Wisconsin pleading requirements are in accord with Twombley‘s holding that:

[P]laintiff’s pleading obligation required more than labels and conclusions, and a formulaic recitation of the elements of a cause of action.  Furthermore, on a motion to dismiss, courts are not bound to accept as true a legal conclusion couched as a factual allegation.  The [Twombley] Court explained that the need at the pleading stage for allegations plausibly suggesting (not merely consistent with) agreement reflects the threshold requirement of Rule 8(a)(2) that the ‘plain statement’ possess enough heft to show that the pleader is entitled to relief.

Data Key, 356 Wis. 2d at 678-79 (internal citations and quotation marks omitted; emphasis in original).

The first element that must be pled to establish a conspiracy is the formation of the conspiracy.  This is generally met by pleading—and if challenged on summary judgment, showing facts—that demonstrate an agreement between the alleged conspirators.  Bartley v. Thompson, 198 Wis. 2d 323, 342 (Wis. Ct. App. 1995) (“Even with notice pleading, however, a general allegation of conspiracy, without a statement of the facts […]