Overview

The Ohio Supreme Court recently decided that Ohio law does not recognize claims for tortious acts committed by persons alleged to be acting in concert. DeVries Dairy, LLC v. White Eagle Cooperative Association, Inc., 132 Ohio St. 3d 516, 2012-Ohio-3828.

Recognized as viable claims in other states, these claims impose liability for either conspiring to have someone commit a tort or knowingly encouraging or assisting another person's tortious act. Whether a plaintiff can pursue these claims in Ohio had long been subject to debate. The DeVries decision and those of other Ohio courts in its immediate wake, however, demonstrate that Ohio courts are not likely to entertain such claims in the foreseeable future.

The DeVries case involved a dispute between an Ohio dairy farm, an Indiana agricultural cooperative association and a Missouri dairy distributor. In addition to contract claims, the plaintiff in DeVries alleged various tort claims against the defendants, including claims for conversion, negligent misrepresentation and breach of fiduciary duty. The plaintiff also alleged that the defendants had provided each other with "substantial assistance and encouragement" in the commission of the underlying torts and were thus also liable on a claim for "tortious acts in concert."

The federal district court initially confronted with the case stated that it could not determine whether such a claim was valid under Ohio law. The district court asked the Ohio Supreme Court whether Ohio recognizes a cause of action for tortious acts in concert "under the applicable circumstances." The Ohio Supreme Court answered no, without discussion of the "applicable circumstances." The court stated that it had never recognized a claim for tortious acts in concert before and declined to do so under the circumstances before it.

In the immediate wake of DeVries, Ohio courts are not permitting claims for tortious acts in concert. Ohio's Second District Court of Appeals recently affirmed a trial court's dismissal of a claim that a defendant had participated in another party's breach of fiduciary duty. Sacksteder v. Senney, 2012-Ohio-4452, 76. The United States District Court for the Southern District of Ohio granted summary judgment to a placement agent accused of having assisted its client in committing fraud. In re National Century Financial Enterprises, Opinion and Order, Case No. 2:03-md-1565 (Oct. 26, 2012). The District Court stated that DeVries made clear that Ohio does not recognize a claim for aiding and abetting another party's tortious conduct.

Given the absence of discussion of the underlying circumstances in the Ohio Supreme Court's decision in DeVries, and the court's limiting statement that it declined to recognize a claim for tortious acts in concert "under the circumstances of [the DeVries] case," it is not clear that Ohio courts will never recognize such a claim. However, given DeVries and its immediate progeny, courts applying Ohio law now and in the foreseeable future are more likely to dismiss claims for tortious acts in concert.