The concept of conspiracy currently plays a significant role in three areas of substantive law: antitrust, civil rights, and criminal law. Although the role of conspiracy in these substantive areas of law differs in many ways, all three require that the conspiracy consist of a plurality of actors. Determining what constitutes a plurality of actors when all the alleged conspirators are agents of a single corporation poses a continuing problem.
This problem raises two distinct questions. The first is whether, when one agent acts alone within the scope of corporate business, the agent and the corporation constitute a plurality. The second question is whether, when several agents of a single corporation act together in furtherance of the corporation's business, a plurality is established or there is just one actor, the corporation, operating through multiple agents. These questions have plagued antitrust law for some time, and more recently have arisen in civil rights law.
The issue of what constitutes the requisite plurality also has arisen under general criminal conspiracy laws. The law in this area is uncertain. Courts have had trouble framing the issues correctly and have relied on inappropriate precedents in making their decisions. At times, courts also have avoided confronting the issue directly, or simply have failed to analyze the question carefully. The result has been confusion regarding what constitutes a plurality in an intracorporate situation for the purpose of criminal conspiracy laws.
This Article examines the law on the plurality required for conspiracy under the criminal law in the two intracorporate fact patterns outlined above, and examines the differences between the plurality required for civil rights and antitrust conspiracies on the one hand and criminal conspiracies on the other. The Article begins with a brief history of conspiracy and an introduction to its roles in various areas of law. The plurality component of conspiracy is then examined in detail in two areas, antitrust and civil rights, to determine how plurality is defined in those areas and the rationale behind the definition.
After a brief discussion of corporate criminal liability and criminal conspiracy generally, the plurality requirement for criminal conspiracy is examined in detail. The Article concludes by proposing an analysis for the definition of corporate criminal conspiracy based on the substantive goals of criminal conspiracy law. Under this analysis, the plurality requirement is not met when a corporation and only a single agent are involved. When two or more agents of a corporation conspire, however, liability is not precluded. In this second situation, the question is whether agents of the same corporation can constitute a plurality. If they can, the liability of the corporation for the actions of its agents should be determined under the usual standards of corporate criminal liability.
The question whether multiple agents of a single corporation can constitute a plurality has been answered differently by the courts in different contexts. In antitrust and civil rights cases, courts have generally held that multiple agents are not a plurality. This Article concludes that such decisions reflect policy considerations unique to these areas of law, and that their reasoning is not apposite to criminal conspiracy. In the general criminal conspiracy context, the best approach is to analyze plurality with reference to the underlying purposes of criminal conspiracy law. The Article concludes that a rule that finds the requisite plurality in multiple agents of a single corporation will best further those purposes.
Sarah N. Welling, Intracorporate Plurality in Criminal Conspiracy Law, 33 Hastings L.J. 1155 (1982).