FRAUD AND DEFAMATION Flashcards
False Claims Act and Fraud
The opioid epidemic cases was all about failure to warn. Failed to warn of addiction. (Strict liability)
False Claims Act, they lie to doctors about the addictive properties of opioids, doctors prescribed the drugs, medicare and Medicaid paid for all the drugs that should not have been prescribed so the government was defrauded.
Fraud is a ____ Tort
Intentional
Antitrust is a ____ Tort
Intentional
Defamation is ___ Tort
Intentional
ELEMENTS of FRAUD
- An intentional misrepresentation
- Of fact
- That proximately causes harm and
- Is material, (IMPORTANT, CENTRAL)
- Intended to induce reliance and
- Does induce reliance by the Plaintiff,
* Must prove that the P’s situation is worse off because of their reliance.
* Would the P have acted differently if the D’s conduct/statements were different (more in-line with the truth). - Which is reasonable or justifiable.
Fraudulent Misrepresentation: P must show that D…
D made a false representation, actual or implied, or falsely concealed a matter of fact material to the transaction;
Had knowledge of the falsity, or made statements with such utter disregard and recklessness that knowledge is inferred;
Had intent to mislead another into relying on his or her representation;
That the P had a right to rely and did, in fact, rely on the D’s statements; AND
That injury was a consequence of that reliance.
Negligent Misrepresentation: P must show that D…
The D made material misrepresentation of fact to Ps;
That the Ps relied upon such representation,
That the Ds knew or should have known that the representation was false at time it was made,
That the D intended to induce Ps to rely on such representation, AND
That P’s reliance proximately caused his or her injury
Innocent Misrepresentation:
D publicly misrepresented a material fact as to the character and quality of the product;
Which is false and upon which the consumer is expected to justifiably rely; and
The representations are more than mere statements of opinion or kind of loose general sales talk commonly referred to as puffing.
Misrepresentation Defense
No misrepresentation was made
P did not rely on the misrepresentation
That reliance on the misrepresentation was not justified
That the misrepresentation was not the proximate cause of the P’s injury
That a written contract between the parties barred P from claiming reliance on D’s oral misrepresentation
FRAUD includes
Misrepresentation (false representation, concealment, or nondisclosure);
Knowledge of falsity (scienter);
Intent to defraud (i.e. to induce reliance);
Justifiable reliance; and
Resulting damage
Defamation
To create liability for defamation there must be:
(a) a false and defamatory statement concerning another;
(b) an unprivileged publication to a third party;
(c) fault amounting at least to negligence on the part of the publisher ; and
(d) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication.
Concealment statements
These are fraudulent statements
There is a failure to disclose version of concealment. That requires a fiduciary duty
-Other concealment is you are actually trying to conceal information
False Promise
A promise that you did not intend to perform, the other side relied on it, you did not perform
Defamatory Statement of Fact
A defamatory communication may consist of a statement of fact.
Defamatory Expressions of Opinion
A defamatory communication may consist of a statement in the form of an opinion, but a statement of this nature is actionable only if it implies the allegation of undisclosed defamatory facts as the basis for the opinion.
