The Lawletter Vol 40 No 10
Dora Vivaz—Senior Attorney, National Legal Research Group
The intracorporate conspiracy doctrine was created to shield corporations and their employees from liability for routine, collaborative business decisions that are later alleged to be discriminatory. E.g., Tabb v. District of Columbia, 477 F. Supp. 2d 185 (D.D.C. 2007). Although the doctrine was initially crafted in the context of the Sherman Act, the courts have extended its reach to many other contexts, including claims brought under civil rights and other antidiscrimination laws. See, e.g., Blades v. Countrywide Home Loans, Inc., No. CIVA1:06CV1000LG-JMR, 2007 WL 2746678 (S.D. Miss. Sept. 18, 2007) (available on WL and Pacer). The courts have not necessarily agreed on just how far the doctrine should be extended, however. See id. (and cases cited).
In a recent case, for example, the federal district court noted that while the doctrine applies in the Sixth Circuit to conspiracy claims under 42 U.S.C. § 1985, it is unclear whether it also applies to claims under 42 U.S.C. § 1983. See Engle v. City of Cuyahoga Falls, No. 5:14-CV-1161, 2015 WL 3852143 (N.D. Ohio June 22, 2015). In fact, it appears that the district courts within the Sixth Circuit continue to disagree on whether the doctrine should apply to § 1983 cases. Id.
In another recent case that involved a constitutional claim under § 1983, the Sixth Circuit again declined to decide the question, finding, instead, that even if the intracorporate conspiracy doctrine applied, the conduct at issue fell within the exception for defendants acting outside of the scope of their employment. DiLuzio v. Village of Yorkville, Ohio, 796 F.3d 604 (6th Cir. 2015). That case involved the ordering of demolition of a building by an official who had the self-serving intent to personally obtain the property, which clearly constituted an improper abuse of authority for personal gain or malicious intent and was therefore outside the scope of his employment and not protected by the intracorporate conspiracy doctrine.
What is clear at this point is that plaintiffs wishing to bring conspiracy claims under the civil rights statutes or the Fourteenth Amendment, pursuant to § 1983, need to take a close look at whether the claim will be precluded by the intracorporate conspiracy doctrine.
