8.4 DEFENSES
8.401 Statute of Limitations. The conspiracy statute does not contain its own statute of limitations, so one must look elsewhere to establish the limitations period. While the Virginia Supreme Court has not specifically addressed the issue, the Fourth Circuit Court of Appeals, relying on section 8.01-243, 103 has held that a five-year limitations period applies to statutory conspiracy claims. 104 It appears that the Virginia Supreme Court likewise would adopt a five-year statute of limitations for such claims. 105
By comparison, the statute of limitations applicable to a claim for common law civil conspiracy has been held to be the statute of limitations applicable to the underlying tort. 106
A cause of action for statutory conspiracy accrues when one is "injured in his . . . business." 107 This includes when "any damage, however slight, is sustained." 108 Thus, in Eshbaugh v. Amoco Oil Co., 109 because the plaintiff "incurred some, if not all, the damages resulting from the alleged conspiracy" 110 when he executed a cancellation agreement and gave up the balance
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of his leasehold term, the action accrued at that time, not when the lease was not renewed and was, therefore, barred. 111 This rule applies even when a plaintiff alleges a pattern of continuing misconduct. 112
8.402 Doctrine of Intracorporate Immunity. The intracor-porate immunity doctrine holds that "there must be two persons to comprise a conspiracy, and a corporation, like an individual, cannot conspire with itself." 113 Since a corporation is merely a legal entity wholly created by law, it can act only through its agents, officers, and employees. 114 A conspiracy between a corporation and the agents of that corporation who are acting in the scope of their employment 115 would involve only a single entity and would be legally impossible. 116 The intracorporate immunity doctrine, therefore,
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turns on whether the accused co-conspirators are one and the same entity. 117 The intracorporate immunity defense "requires a factual determination as to whether the acts complained of were within the scope of the alleged agency relationship and cannot be resolved on demurrer." 118 The intracorporate immunity doctrine does not apply when agents are engaged in unauthorized acts. 119
In Greenville Publishing Co. v. Daily Reflector, Inc., 120 the Fourth Circuit announced the "independent stake exception" to the intracorporate immunity doctrine. Under the exception, if a person has an "independent, personal stake" in achieving the principal or employer's impermissible objectives, a court may find a multiplicity of actors for purposes of establishing a conspiracy. For example, the court held that the defendant newspaper company could be deemed to have conspired with its president to eliminate the plaintiff's competing newspaper because the president also had an interest in a third newspaper that would also have benefited from elimination of the plaintiff's business. The personal stake, however, must be "independent" of the interests of the corporation. 121
The exception is a narrow one 122 and is applied narrowly for fear "it will consume the entire intra corporate immunity doctrine." 123 Although the
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Virginia Supreme Court has recognized the intracorporate immunity doctrine, 124 it has never addressed or adopted the exception. 125
8.403 Noerr-Pennington Immunity. A longstanding doctrine of federal antitrust law 126 called the Noerr-Pennington doctrine was first acknowledged by the Virginia Supreme Court in Lockheed Information Management Systems Co. v. Maximus, Inc. 127 In that case, the court explained the doctrine as follows:
This doctrine is based on United Mine Workers v. Penning-ton, 381 U.S. 657. . . (1965), and Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127. . . (1961). The doctrine developed because business entities seeking to influence legislative or executive policy which would benefit them and injure competitors were charged with violations of the federal anti-trust laws. Grounded in the constitutional right to free speech and to petition the government, the Noerr-Pennington doctrine provides that persons petitioning the government cannot be charged with violations of the Sherman Antitrust Act for attempts to influence legislative or executive action. Pennington, 381 U.S. at 669; Noerr, 365 U.S. at 135. The doctrine also applies to adjudicatory proceedings before administrative agencies. California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 510-11. . . (1972). 128
Maximus involved claims for tortious interference and conspiracy in connection with a protest by Lockheed of a government notice to award a bid to Maximus. Lockheed argued that the Noerr-Pennington doctrine should
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shield it from liability for statements it made in connection with the bid protest. The court appeared to accept application of the Noerr-Pennington doctrine generally to business tort cases but rejected its application in Maximus, holding that "under the commercial activities exception, the Noerr-Pennington doctrine does not apply to cases in which the government entity is acting as a market participant." 129 In so doing, the court noted that
[t]he Noerr-Pennington doctrine was developed as a protection for entities petitioning the government in relation to legislative or policy making matters. The doctrine was not intended to shield false, misleading, or otherwise improper conduct by bidders for government contracts, particularly when the governmental body is acting as a private commercial entity. The extension of the Noerr-Pennington immunity to Lockheed's actions in this case would represent a significant step beyond the intended boundaries of the doctrine and would contravene the policy behind the establishment of the doctrine. 130
Subsequently, in Titan America, LLC v. Riverton Investment Corp., 131 which affirmed the trial court's dismissal of a case on Noerr-Pennington grounds, the Virginia Supreme Court squarely held that "the protection of First Amendment rights provided by application of the Noerr-Pennington doctrine should be available to a defendant in causes of action for tortious interference with business expectancy and conspiracy." 132 In Titan, the plaintiff brought suit against Riverton, a competing cement manufacturer, for opposing Titan's plans to acquire land in Warren County to build a warehouse and distribution facility "by appearing before the...
