Legal Memorandum: Concerted Action and Civil Conspiracy

Issue: What are the elements of a cause of action for a ‘concerted action’ or a ‘civil conspiracy’ in New York?

Area of Law: Business Organizations & Contracts
Keywords: Concerted action or civil conspiracy; Cause of action
Jurisdiction: New York
Cited Cases: None
Cited Statutes: None
Date: 03/01/2010

The elements of a cause of action for “concerted action” are (1) an express or tacit understanding to participate in a common design or plan to commit a tortious, intentional act; (2) that each of the defendants acted tortuously; and (3) that at least one of the defendants committed an act constituting a tort in pursuance of the agreement.  Cresser v. Am. Tobacco Co., 174 Misc. 2d 1, 7 n.4, 662 N.Y.S.2d 374, 379 n.4 (Sup. Ct. 1997) (citations omitted).  Similarly, the elements of “civil conspiracy”—which is not an independent tort—are: (1) the agreement to participate in an unlawful act; (2) an injury that was caused by an unlawful overt act, performed by one of the parties to the agreement; (3) the overt act was pursuant to, and in furtherance of, the common scheme.  Id. at 7 n.4, 662 N.Y.S.2d at 379 n.4 (citations omitted).  In some cases, the elements of proof of civil conspiracy versus concerted action might be important.  Concerted action requires that each of the parties to the unlawful agreement committed a tortious act; civil conspiracy requires only that one of the participants to the agreement committed an overt act in furtherance of the agreement.  Id. at 6-7; 662 N.Y.S.2d at 378-79.


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