12.9.2 Employer and Employee as Co-Conspirators.

• Jurisdiction: Arizona

12.9.2 Employer and Employee as Co-Conspirators. The general rule is that “agents and employees of a corporation cannot conspire with their corporate principal or employer when acting in their official capacities on behalf of the corporation and not as individuals for their individual advantage.”¹⁶⁸ However, in some cases, the mere boilerplate allegation that “defendants acted to serve their own interests,” might be enough to survive a motion to dismiss, on the basis that defendants went beyond the agency relationship and acted out of self-interest.¹⁶⁹

An interesting related issue is whether an employer may be vicariously liable for its employee’s participation in a conspiracy. In Baker ex rel. Hall Brake Supply, Inc. v. Stewart Title & Trust of Phoenix, Inc.,¹⁷⁰ the court held that an escrow company did not have respondeat superior liability for its escrow agent’s alleged civil conspiracy with a real estate purchaser to defraud real estate limited partnership investors by reselling the purchaser’s properties to the partnership at inflated prices. The court reasoned:

We find no case that holds an employer liable for its employee’s acts to perpetuate a conspiracy to defraud under respondeat superior. The absence of such case law may result from the...