Civil Conspiracy and Aiding-and-Abetting in Minnesota: Reaching the People Around the Wrongdoer

The person who took the money is judgment-proof. The people who helped — the accountant who prepared the statements, the brother-in-law who signed the transfer, the entity that took the deposit — are not. That is the situation that produces a civil conspiracy count, and it is the situation in which most such counts are pleaded badly.

Here is the thing to understand before drafting one. Minnesota has held since 1950 that “[a]ccurately speaking, there is no such thing as a civil action for conspiracy.” Harding v. Ohio Casualty Insurance Co., 230 Minn. 327, 338, 41 N.W.2d 818 (1950). The conspiracy count adds no cause of action, no separate measure of damages, and no element of wrongfulness that the underlying tort did not already supply. If the underlying tort fails, the conspiracy count fails with it — as the Court of Appeals confirmed again in April 2026.

So why plead it?

Because of Minn. Stat. § 604.02, subd. 1. In Minnesota, defendants are ordinarily severally liable, each paying “in proportion to the percentage of fault attributable to each.” There are four exceptions, and the second one is this:

the following persons are jointly and severally liable for the whole award: … (2) two or more persons who act in a common scheme or plan that results in injury;

That is the reason to plead concerted action, and it is a reason about collection, not about liability. A defendant found 15 percent at fault pays 15 percent — unless the jury also finds he acted in a common scheme or plan, in which case he can be made to pay all of it. In a case where the principal wrongdoer is insolvent, that finding is the entire case.

Very few Minnesota complaints frame it that way. Most plead conspiracy as though it were a claim, get it dismissed as derivative, and never reach the apportionment question at all.

Is civil conspiracy a cause of action in Minnesota?

No. It is derivative.

Harding is the controlling statement, and it is unusually direct. The court collected the authorities and concluded:

Liability for damage done by the concerted action of several persons acting as a combination is predicated upon civil wrong done to plaintiff by the defendants, and not upon the conspiracy or combination.

230 Minn. at 337. Quoting Prosser: “The gist of the action is not the conspiracy charged, but the tort working damage to the plaintiff.” Id. And: “It logically follows that, since in so-called civil conspiracy cases liability is predicated upon the tort committed by the conspirators and not upon the conspiracy, allegations of conspiracy do not change the nature of the cause of action.” Id. at 338.

Minnesota courts still apply it exactly that way. In Anderson v. Anderson, No. A25-1075 (Minn. App. Apr. 27, 2026), the Court of Appeals disposed of a civil-conspiracy count in a footnote:

Civil conspiracy is not an independent cause of action; rather, it is a derivative claim that must be supported by an underlying tort. … If the underlying tort claim fails, then the conspiracy claim necessarily fails as well.

The court cited Harding and D.A.B. v. Brown, 570 N.W.2d 168, 172 (Minn. App. 1997), where the same result had been reached three decades earlier: “the conspiracy count fails because it is not supported by an underlying tort.”

The practical consequence is that a conspiracy count is only ever as strong as the tort underneath it. If your fraud count is dismissed for failure to plead with particularity, the conspiracy-to-defraud count goes with it. See our companion piece on common-law fraud and negligent misrepresentation for what that pleading burden actually requires.

Then what does a conspiracy allegation actually do?

Harding answers this too, in a sentence that ought to be in every Minnesota litigator’s outline:

The true office of allegations of conspiracy is to show facts for vicarious liability of defendants for acts committed by others, joinder of joint tortfeasors, and aggravation of damages.

230 Minn. at 338.

Three functions, none of them “a new claim”:

1. Vicarious liability. It makes each participant answerable for the acts of the others committed in furtherance of the scheme. That is how you reach the person who never personally made the misrepresentation.
2. Joinder. It supplies the basis for suing them together, in one action, on one set of facts.
3. Aggravation of damages. Concerted action can increase the harm even where it does not change the character of the act. As the court put it in the older Bohn Manufacturing formulation quoted in Harding: “If the act be unlawful, the combination of many to commit it may aggravate the injury, but cannot change the character of the act.” 230 Minn. at 337.

Add to that list the modern fourth function — the § 604.02, subd. 1(2) joint-and-several exception — and you have the real reason to plead concerted action.

What does “common scheme or plan” mean?

No Minnesota appellate decision construes those words as they appear in § 604.02. That is less surprising than it sounds, because the phrase is not old statutory language.

Before 2003, the statute ran the other way. Where two or more persons were jointly liable, “each is jointly and severally liable for the whole award” — full joint-and-several exposure was the default, not an exception. The only cap on that default applied to a narrow class of environmental and pollution-liability claims (chs. 18B, 115, 115A, 115B, 115C, and 299J, and related public-nuisance and public-health law), where a defendant whose fault was 15 percent or less had a several-liability-style cap at four times that percentage, and a state or municipal defendant under 35 percent fault had a separate cap at twice its percentage. 2003 Minn. Laws ch. 71, § 1 inverted the default — making proportional several liability the rule — and added clauses (1) through (4), including the common-scheme-or-plan exception, for the first time. The amendment “applies to claims arising from events that occur on or after August 1, 2003.”

But the legislature did not coin the phrase, and a Minnesota court asked to construe it is unlikely to start from nothing. Minnesota has a developed concert-of-action line under Restatement (Second) of Torts § 876(a) — the subsection immediately preceding the aiding-and-abetting provision discussed below — which reaches one who “does a tortious act in concert with the other or pursuant to a common design with him.”

In Lind v. Slowinski, 450 N.W.2d 353 (Minn. App. 1990), the Court of Appeals stated the test in its own voice:

For this theory to be applicable, the participants must therefore know of the plan and its purpose and take affirmative steps to encourage the achievement of the tortious result.

450 N.W.2d at 357.

Lind drew that from Olson v. Ische, 343 N.W.2d 284 (Minn. 1984), where the supreme court rejected a § 876 claim and adopted the Massachusetts Appeals Court’s formulation — the doctrine “appears to be reserved for application to facts which manifest a common plan to commit a tortious act where the participants know of the plan and its purpose and take affirmative steps to encourage the achievement of the result.” 343 N.W.2d at 289 (quoting Stock v. Fife, 13 Mass. App. 75, 430 N.E.2d 845, 849 n.10 (1982)). Olson carried forward the limiting principle in the same passage: “[T]he mere presence of the particular defendant at the commission of the wrong, or his failure to object to it, is not enough to charge him with responsibility.” Id. And it framed the ultimate question as whether the defendants acted “in accordance with an agreement to cooperate in a particular line of conduct or to accomplish a particular result.” Id. (quoting Restatement (Second) of Torts § 876 cmt. a (1977)).

Two honest cautions before leaning on them. Both are common-law concert-of-action decisions: neither mentions § 604.02 or the phrase “common scheme or plan,” and both predate the 2003 amendment that put the phrase in the statute. Both are also passenger-and-intoxicated-driver cases, factually remote from a financial scheme. They are the closest analogue Minnesota law offers, not a controlling construction of the statutory words.

The practical upshot is not “argue from first principles.” It is: plead to the statutory language, and argue Olson and Lind for the content that language already carries — knowledge of the plan and its purpose, plus affirmative steps to advance it, with mere presence and failure to object expressly insufficient.

What counts as a conspiracy?

Harding supplies the definition:

A conspiracy is a combination of persons to accomplish an unlawful purpose or a lawful purpose by unlawful means.

230 Minn. at 337.

And the corollary, which defeats a great many complaints:

A combination of persons to accomplish a lawful purpose by lawful means is not only not a conspiracy, but is absolutely lawful.

Id.

The court then closed the obvious escape hatch. Bad motive does not convert lawful conduct into a tort:

Allegations of conspiracy and malice do not make wrongful what otherwise is not.

230 Minn. at 338.

That is the sentence to read to a client who wants to sue a competitor’s investors, a lender’s board, or a family member’s advisors because the outcome was unfair and everyone involved obviously knew about it. Knowing about it and disliking the plaintiff are not enough. Something inside the combination has to be independently tortious.

Can someone join a conspiracy that is already running?

Yes — but only with knowledge. Harding adopted the formulation from Judge Dillon’s charge in the Babcock case:

Any one who, after a conspiracy is formed, and who knows of its existence, joins therein, becomes as much a party thereto, from that time, as if he had originally conspired.

230 Minn. at 335.

Harding itself failed on exactly that element. The complaint alleged that the defendants “joined” a conspiracy formed in 1939 and that their act — an insurer’s withdrawal as surety on the plaintiff’s private-detective bond — consummated its purpose. But there was “no allegation that defendants knew of the existence of the original conspiracy and its purpose.” Id. at 336. Without knowledge, a defendant whose act happens to advance someone else’s scheme is not a member of it.

This is the most common defect in late-joiner allegations: the complaint proves the defendant did something helpful and stops there.

Can a company conspire with its own officers and employees?

This is the intracorporate conspiracy question, and in Minnesota it is genuinely unsettled. The doctrine — that a corporation acts only through its agents and therefore cannot conspire with them — is well developed in some jurisdictions. We were unable to locate a published Minnesota appellate decision squarely adopting or rejecting it. Unlike the “common scheme or plan” question above — where Minnesota’s concert-of-action cases supply real content by analogy — there is no closely analogous Minnesota line to argue from here. Treat it as genuinely open, and do not assume a rule in either direction.

Two practical observations.

First, the question bites less in Minnesota than elsewhere precisely because of Harding. In a state where conspiracy is an independent tort, the intracorporate doctrine can dispose of a claim outright. In Minnesota, where the count is derivative anyway, striking it usually changes nothing about the underlying liability — the plaintiff still has the tort, and the corporation is still answerable for its agents’ conduct through ordinary respondeat superior.

Second, the doctrine has no purchase where the alleged conspirators are legally distinct entities, even affiliated ones. In Krutchen v. Zayo Bandwidth Northeast, LLC, 591 F. Supp. 2d 1002 (D. Minn. 2008), the defendants argued the plaintiff had “essentially alleged that Zayo Bandwidth conspired with itself.” The court declined to treat the affiliated companies as an integrated entity at the pleading stage, reasoning that “Zayo Bandwidth, Zayo Group and Onvoy are all separate entities.” Id. at 1023 n.14. That is a federal district court decision, not binding on a Minnesota state court, and it arose under a federal conspiracy statute (42 U.S.C. § 1985) rather than common-law conspiracy — but the separate-entity point is the one that most often decides these arguments in practice.

Is aiding and abetting a real theory in Minnesota?

Yes, and the Minnesota Supreme Court said so in a case where the defendants argued the opposite. In Witzman v. Lehrman, Lehrman & Flom, 601 N.W.2d 179 (Minn. 1999), an accounting firm cited a federal decision stating that “[i]n Minnesota, there is no common law cause of action for ‘aiding and abetting.’” The court rejected it, noting the federal court “cited no Minnesota authority for this proposition.” 601 N.W.2d at 185.

The theory rests on Restatement (Second) of Torts § 876(b), which the court quoted:

For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he … (b) knows that the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself[.]

Id. Minnesota’s own version of the rule is older still: “all who actively participate in any manner in the commission of a tort, or who procure, command, direct, advise, encourage, aid, or abet its commission, or who ratify it after it is done are jointly and severally liable” for the resulting injury. Id. (quoting Greenwood v. Evergreen Mines Co., 220 Minn. 296, 309, 19 N.W.2d 726 (1945)).

Witzman set out the elements:

A claim for aiding and abetting the tortious conduct of another has three basic elements: (1) the primary tort-feasor must commit a tort that causes an injury to the plaintiff; (2) the defendant must know that the primary tort-feasor’s conduct constitutes a breach of duty; and (3) the defendant must substantially assist or encourage the primary tort-feasor in the achievement of the breach.

601 N.W.2d at 187.

Conspiracy vs. aiding and abetting

The distinction matters because aiding and abetting does not require you to prove an agreement — often the hardest thing to prove and the thing a careful professional will never have made.

Can you sue the accountant, the lawyer, or the bank?

You can, but Witzman built a wall around it that plaintiffs consistently underestimate.

The firm asked the supreme court to grant accountants outright immunity from aiding-and-abetting liability. The court refused, and explained why in terms that apply to any professional defendant:

To grant professionals such immunity would conceivably give them free reign to provide any assistance short of fraud in helping clients engage in conduct the professionals know to be tortious.

601 N.W.2d at 187. But it balanced that against the risk of chilling ordinary professional service, and adopted a heightened standard:

Accordingly, in cases where aiding and abetting liability is alleged against professionals, we will narrowly and strictly interpret the elements of the claim and require the plaintiff to plead with particularity facts establishing each of these elements.

Id.

Then it applied that standard and dismissed. The accountants had served the trustee for over three decades, which made it “arguably permissible to infer” they knew about his dealings with the trust assets. That was not enough. The plaintiff also had to “allege specific facts showing that [the firm] knew the tortious nature” of those dealings — knowledge of the conduct is not knowledge that the conduct is wrongful. And on the assistance element, the firm’s alleged conduct amounted to “routine accounting services”: preparing financial statements, setting up draw accounts, recording conveyances, and providing tax advice. 601 N.W.2d at 188–89.

Two lines emerge, and both are traps:

• The routine-services line. Doing the job the client hired you to do is not substantial assistance, even when the client is using the work to commit a tort. A complaint that describes only ordinary professional output will be dismissed.
• The actual-knowledge line. The court declined to infer tortious knowledge from a facially unremarkable transaction: the trustee’s sale of estate assets “may have been an abuse of discretion, but was not facially fraudulent,” and inferring knowledge from that “would be tantamount to requiring professionals wanting to avoid lawsuits to disclose any of their clients’ activities that could arguably be considered unreasonable.” Id. at 190.

The practical drafting lesson: a viable professional aiding-and-abetting complaint alleges a specific act outside the ordinary scope of the engagement, plus specific facts from which actual knowledge of wrongfulness follows. Length does not substitute for either.

How do knowledge and substantial assistance interact?

They trade off. Witzman adopted a sliding scale:

“We evaluate [these elements] in tandem.” … Thus, “where there is a minimal showing of substantial assistance, a greater showing of scienter is required.”

601 N.W.2d at 188 (quoting In re TMJ Implants Products Liability Litigation, 113 F.3d 1484, 1495 (8th Cir. 1997), and Camp v. Dema, 948 F.2d 455, 459 (8th Cir. 1991)).

The court also identified the factors that drive the analysis, drawn from Restatement § 876(b) cmt. d: the relationship between the defendant and the primary tortfeasor, the nature of the primary tortfeasor’s activity, the nature of the assistance provided, and the defendant’s state of mind. Id.

This is genuinely useful in practice. A defendant with a thin assistance record can still be reached if the scienter showing is strong; a defendant with weak evidence of knowledge can still be reached if the assistance was substantial and unusual. What loses is a case that is weak on both.

Where these theories actually earn their keep

• Financial exploitation of an older or vulnerable adult. The person who moved the money is often a family member with nothing left. The bank employee, the caregiver’s spouse, or the notary who processed a transfer they knew was wrong is a different matter. See financial exploitation of vulnerable adults in Minnesota.
• Asset-stripping and undercapitalized entities. Concerted-action theories sit alongside, and are sometimes an alternative to, piercing the corporate veil — which has its own elements and its own high bar.
• Interference orchestrated through third parties. Where the wrongdoer used others to break up a contract or a business relationship, the concerted-action allegation is how you reach them. See tortious interference with contract and prospective advantage.
• Reputational attacks with more than one participant. Note that a conspiracy count premised on someone’s speech now carries anti-SLAPP exposure — the Anderson court dismissed the civil-conspiracy claim in the course of granting a special motion for expedited relief. See Minnesota defamation law and the new anti-SLAPP act.

How long do you have?

However long you have on the underlying tort. Because these claims are derivative, they do not carry their own limitations period — they inherit one.

Minnesota polices this by looking at the substance of the pleading rather than its label. In Wild v. Rarig, 302 Minn. 419, 447, 234 N.W.2d 775 (1975), the plaintiff pleaded interference with business relationships alongside defamation. The court held the interference claim was governed by defamation law and its two-year period, because

regardless of what the suit is labeled, the thing done to cause any damage to Dr. Wild eventually stems from and grew out of the defamation.

Id. In D.A.B., a conspiracy-to-breach-fiduciary-duty count fell to the same two-year limitation that barred the underlying claim. 570 N.W.2d at 172.

Renaming a stale claim “conspiracy to commit X” does not restart the clock on X.

What kills these claims

In rough order of how often it happens:

1. The underlying tort is dismissed. Everything derivative goes with it. Fix the primary claim first.
2. The complaint pleads an agreement in conclusory terms. “Defendants acted in concert to effectuate a common scheme” is a legal conclusion. Plead who agreed, to what, and when.
3. The conduct alleged is lawful. Harding: a combination to accomplish a lawful purpose by lawful means “is absolutely lawful,” and malice does not change that.
4. The late joiner had no knowledge. Advancing someone else’s scheme by accident is not joining it.
5. Against a professional, the assistance alleged is the engagement itself. Witzman forecloses that, and the particularity requirement means you cannot get to discovery on a hope.
6. The apportionment argument is never made. Even when the concerted-action allegation survives, plaintiffs routinely fail to tie it to § 604.02, subd. 1(2) — and so win a finding worth nothing at collection.

One drafting note. Where the underlying wrong is fraud, Minn. R. Civ. P. 9.02 applies to the whole structure: “In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity.” The same rule adds, usefully, that “[m]alice, intent, knowledge, and other condition of mind of a person may be averred generally” — but Witzman’s professional-defendant standard overrides that generosity where the defendant is an accountant, lawyer, or comparable professional, requiring particularity as to each element including knowledge.

Madgett Law, LLC

Madgett Law, LLC brings and defends concerted-action claims in Minnesota state and federal court — civil conspiracy, aiding and abetting a breach of fiduciary duty, and the apportionment fight under § 604.02 that usually decides whether a judgment is collectible. That work most often arises out of financial exploitation, business break-ups, fraudulent transfers, and cases where the primary wrongdoer has no assets and the people who enabled the loss do. If you are trying to reach someone beyond the obvious defendant, or you have been named as one of those people, call 612-470-6529 or send us a message.

Sources: Minn. Stat. § 604.02, subd. 1 (apportionment of damages; several liability in proportion to fault, with four exceptions creating joint and several liability for the whole award, including cl. (2) “two or more persons who act in a common scheme or plan that results in injury”; provision applies to claims arising from events occurring on or after August 1, 2003; History line ends 2003 c 71 s 1). Minn. R. Civ. P. 9.02 (fraud and mistake pleaded with particularity; malice, intent, knowledge, and other condition of mind may be averred generally). Harding v. Ohio Casualty Insurance Co., 230 Minn. 327, 335–38, 41 N.W.2d 818 (1950) (No. 34,974) (335: knowledge required to join an existing conspiracy, quoting United States v. Babcock; 336: no allegation that the defendants knew of the original conspiracy and its purpose — the defect that defeated the claim; 337: definition of conspiracy; lawful purpose by lawful means “absolutely lawful”; liability predicated on the civil wrong, not the combination; “gist of the action is not the conspiracy charged”; 338: “there is no such thing as a civil action for conspiracy,” quoting 11 Am. Jur., Conspiracy, § 45; the “true office” of conspiracy allegations — vicarious liability, joinder, aggravation of damages; malice does not make wrongful what otherwise is not). D.A.B. v. Brown, 570 N.W.2d 168, 172 (Minn. App. 1997) (No. C2-97-817) (conspiracy count fails where unsupported by an underlying tort; two-year limitation applied). Anderson v. Anderson, No. A25-1075 (Minn. App. Apr. 27, 2026) (civil conspiracy is derivative; falls with the underlying tort; dismissed on a UPEPA special motion for expedited relief). Witzman v. Lehrman, Lehrman & Flom, 601 N.W.2d 179, 185, 187–90 (Minn. 1999) (No. C6-98-555) (185: Restatement (Second) of Torts § 876(b) quoted; Minnesota recognizes aiding-and-abetting liability; Greenwood formulation; 187: three elements; refusal to grant professionals immunity; “narrowly and strictly interpret the elements” and particularity pleading for professional defendants; 188: knowledge and substantial assistance evaluated in tandem, quoting In re TMJ Implants Prods. Liab. Litig., 113 F.3d 1484, 1495 (8th Cir. 1997) and Camp v. Dema, 948 F.2d 455, 459 (8th Cir. 1991); Restatement § 876(b) cmt. d factors; 188: knowledge of the client’s dealings “arguably permissible to infer,” but actual knowledge of their tortious nature separately required; 189: “routine accounting services” insufficient as substantial assistance; 190: no duty to disclose a client’s arguably unreasonable conduct). Greenwood v. Evergreen Mines Co., 220 Minn. 296, 309, 19 N.W.2d 726 (1945) (Nos. 33,917, 34,075) (all who participate in, procure, command, direct, advise, encourage, aid, abet, or ratify a tort are jointly and severally liable). Wild v. Rarig, 302 Minn. 419, 447, 234 N.W.2d 775 (1975) (No. 44238) (claim governed by the law and limitations period of the tort it grew out of, “regardless of what the suit is labeled”). Krutchen v. Zayo Bandwidth Northeast, LLC, 591 F. Supp. 2d 1002, 1023 n.14 (D. Minn. 2008) (Civil No. 08-4737 (DWF/FLN)) (declining at the pleading stage to treat affiliated defendants as an integrated entity for a 42 U.S.C. § 1985 conspiracy claim; “Zayo Bandwidth, Zayo Group and Onvoy are all separate entities”). 2003 Minn. Laws ch. 71, § 1 (S.F. No. 872) (amending Minn. Stat. 2002, § 604.02, subd. 1; struck-and-underscored text shows the pre-2003 default — “each is jointly and severally liable for the whole award” — replaced by proportional several liability, and clauses (1)–(4), including “two or more persons who act in a common scheme or plan that results in injury,” added for the first time; “This section applies to claims arising from events that occur on or after August 1, 2003”; signed by the governor May 19, 2003). Olson v. Ische, 343 N.W.2d 284, 289 (Minn. 1984) (Nos. C3-83-55, C5-82-1651) (rejecting a Restatement § 876 concert-of-action claim; adopting the formulation that the doctrine is “reserved for application to facts which manifest a common plan to commit a tortious act where the participants know of the plan and its purpose and take affirmative steps to encourage the achievement of the result,” quoting Stock v. Fife, 13 Mass. App. 75, 430 N.E.2d 845, 849 n.10 (1982); mere presence or failure to object insufficient; Restatement § 876 cmt. a “agreement to cooperate in a particular line of conduct”). Lind v. Slowinski, 450 N.W.2d 353, 357 (Minn. App. 1990) (Nos. CX-89-1037, C1-89-1041) (stating the § 876(a) concert-of-action test: participants “must therefore know of the plan and its purpose and take affirmative steps to encourage the achievement of the tortious result”). Leaon v. Washington County, 397 N.W.2d 867, 872 (Minn. 1986), and Olson v. Ische, 343 N.W.2d 284, 289 (Minn. 1984), are also cited in Witzman as prior Minnesota applications of Restatement § 876.

This article is general legal information about Minnesota law. It is not legal advice, it does not address any particular reader’s situation, and reading it does not create an attorney–client relationship with Madgett Law, LLC. No outcome is promised or implied. Statutes and case law change; verify current authority before acting.