Threejack -
yes, I'm zonzgr8
my comment on Sammy's spin - I have less knowledge by far about the history, but if Rambus has made Sammy part of the SF case, that tells me Rambus has the goods to link Sammy to the conspiracy. The cool stuff about civil conspiracy - from my post at the Fool yesterday - a link up is all that's needed, not shoulder to shoulder concerted action:
JA, your post indicates you are thinking "criminal" conspiracy. I offer the clarification quotes below from a recent article, with a good deal of editing by me.
Civil conspiracy historically has been one of several devices by which plaintiffs have attempted to hold a defendant liable for tortious acts committed by other parties. Civil conspiracy claims have been raised nationwide and have been used in cases related to antitrust, banking, civil rights, insurance, labor, securities, and numerous other substantive areas.
A civil conspiracy is an agreement together with an overt act to do an unlawful act or a lawful act in an unlawful manner. Unfortunately, this seemingly straightforward definition is not always easy to apply to the facts of a specific case, and does not always untangle the misconceptions held by many practitioners and numerous courts regarding civil conspiracy.
Although the elements of civil conspiracies are generally a product of state law, an examination of the law in each state reveals striking similarities in the language that defines civil conspiracy as a common law-based theory. The necessary elements of civil conspiracy are: (1) an agreement between two or more persons to commit an unlawful or tortious act (or a lawful act in an unlawful manner); (2) an overt tortious act committed in furtherance of the agreement; and (3) an injury caused by the unlaw or tortious act performed by one of the conspirators. See, e.g., 16 Am. Jur. 2d Conspiracy §50 (1998).
A claim based on civil conspiracy cannot exist independent of a viable cause of action for an underlying tort. Failure to establish proof of each element of the underlying tort should doom a conspiracy claim based on that same act. If there is an affirmative defense to the tort, there can be no action for the conspiracy. The key is to focus the court's attention to where it properly should be placed, on the underlying act, and not simply the existence of an alleged agreement.
In addition to understanding the legal definition of civil conspiracy, any reasoned consideration of this theory must differentiate conspiracy actions based in civil rather than criminal law. The key difference between the two is that in civil law, it is necessary for an overt act to be committed in furtherance of the conspiracy. In criminal law, no such act is required -- the mere agreement to do an unlawful act is the actionable offense. In an early pronouncement on this subject, Judge Learned Hand stated, “whatever may be the rule in criminal conspiracies, it is well settled that civil liability does not depend upon the confederation . . . , but upon the acts committed in realization of the common purpose.” Lewis Invisible Stitch Mach. Co. v. Columbia Blindstitch Mach. Mfg. Corp., 80 F.2d 862, 864 (2d Cir. 1936). This distinction is often overlooked by both attorneys and judges, yet the requirement of a tortious overt act as an essential element of civil conspiracy can make the difference between a successful motion to dismiss and an expensive, protracted legal battle.
civil conspiracy is attractive to plaintiffs for a number of other reasons. First and foremost is the attractive nature of this theory to jurors. We live in a society where “conspiracy theories” and sensationalism are constantly depicted in the popular media. Television dramas and movies such as... When jurors hear similar allegations at trial, their reaction is not likely to be one of immediate skepticism.
A second advantage for plaintiffs in conspiracy cases is created by the existence of trade organizations to which many manufacturers belong, industry seminars that they attend, and the growing ease at which information can be, and is, disseminated. These forums, where extensive information is exchanged among industry members, make it difficult for any manufacturer to assert ignorance of the conduct of other members of its industry. While the mere exchange of information between manufacturers alone is not enough to establish a conspiracy, it is possible that jurors might infer culpability. Moreover, the more of this type of evidence that enters the record, the greater the opportunity for plaintiff's counsel to argue to the jury that “everyone knew what was going on.”
Third, civil conspiracy provides an evidentiary advantage based on an exception to the hearsay rule. Under Federal Rule of Evidence 803(2)(E) and its state law equivalents, the declaration or act of a co-conspirator pursuant to or in furtherance of the conspiracy is admissible in evidence against another party to the conspiracy regardless of his presence or absence at the time of the declaration or act, and regardless of whether the declaration or act was by a conspirator who has been joined as a defendant in the pending action.
Fourth, a civil conspiracy claim brings the potential to extract damages from a defendant based on activity that predates that defendant's involvement in the conspiracy, if the defendant is found to have adopted the conspiracy's purpose. In jurisdictions that rely on joint-andseveral liability [e.g., California], this factor can prove very costly to a manufacturer who is found to have been involved in a conspiracy with members of its industry.
There are several procedural aspects to a civil conspiracy claim that may assist a defendant. Civil conspiracy is an intentional tort, and thus, many jurisdictions require proof that a defendant “knowingly and voluntarily participated in a common scheme to commit an unlawful or tortious act.” Many jurisdictions also enforce a “clear and convincing evidence” standard of proof on the plaintiff to establish the action because it may be subject to misuse. Another procedural bar to a civil conspiracy claim may be the statute of limitations. Generally, the statute of limitations period for a conspiracy claim is widely held to be measured by the underlying tort and begins with each commission of the tort. These procedural aspects should not be overlooked by defendants, as they may dispose of a conspiracy claim at the outset of the case.
