On January 13, 2023, Justice Masley of the New York County Commercial Division issued a decision in Bangladesh Bank v. Rizal Commercial Banking Corp., 2023 NY Slip Op. 30145(U), holding that claims for civil conspiracy and aiding and abetting were not duplicative, explaining:
RCBC argues for dismissal of conspiracy to commit conversion/theft/misappropriation as duplicative. In its second cause of action, plaintiff alleges aiding and abetting conversion/theft/misappropriation while in the third cause of action, plaintiff alleges conspiracy to commit conversion/theft/misappropriation. While fraud and aiding and abetting fraud can be pied alternatively, plaintiff fails to address whether it is pleading aiding and abetting conversion/theft/misappropriation and conspiracy to commit conversion/theft/misappropriation alternatively. Nevertheless, RCBC’s argument is rejected. The claims are different. The D.C. Circuit has explained the difference:
The prime distinction between civil conspiracies and aiding-abetting is that a conspiracy involves an agreement to participate in a wrongful activity. Aidingabetting focuses on whether a defendant knowingly gave substantial assistance to someone who performed wrongful conduct, not on whether the defendant agreed to join in the wrongful conduct.
The Second Circuit also recently examined the distinction:
The Halberstam court noted that there is a qualitative difference between proving an agreement to participate in a tortious line of conduct in the case of conspiracy and proving knowing action that substantially aids tortious conduct in the case of aiding and abetting.
The Halberstam court therefore found it important to keep the distinctions between conspiracy and aiding and abetting] clearly in mind because the distinctions can make a difference. We see no reason to inject the foreseeability requirement pertinent to aiding-and-abetting liability into the in-furtherance-of requirement that exists for conspiracy.
Upon comparison of the second and third causes of action, the court rejects RCBC’s contention that conspiracy to commit conversion in the third cause of action is redundant of aiding and abetting conversion in the second cause of action. Rather, the second claim asserts RCBC’s supportive role, while the third claim asserts that RCBC joined in the conspiracy.
(Internal quotations and citations omitted).