Can Breach of Contract Also Be Fraud? (Part 2)

Can Breach of Contract Also Be Fraud? (Part 2)

Part 1 of this topic discussed the Countrywide case, in which the Second Circuit reversed a $1.2 billion award against Countrywide Home Loans.  The Second Circuit applied the general rule that, without more, breach of contract -- even intentional breach of contract -- does not amount to fraud.

Yet most breach of contract cases also allege fraud and misrepresentation.  The key qualifier to the general rule, and to understanding the Countrywide case itself, is:  “without more.”

Most breach cases do involve more.  The Second Circuit Countrywide case mentioned some of the circumstances where fraud can be implicated by a breach of contract.  The allegation of fraud is so common in breach of contract cases that it is surprising that both the government and the federal district court in Countrywide lost sight of the basic interplay between breach of contract and fraud.

The most common circumstance, and what most cases allege, is that an intentional misrepresentation was made at the time the parties entered into the contract.  In the Countrywide case, the government did not allege, and had no evidence of, a misrepresentation at the time the parties entered the contract.

A second circumstance is when there is a duty to speak at the time of performance.  For instance, in the Countrywide case, if Countrywide had been required to certify the investment quality of the mortgages each time it sold the mortgages to Fannie Mae and Freddie Mac, a false certification could have led to a claim for fraud.  But apparently, no certification was required from Countrywide as part of each sale, and according to the Second Circuit decision, Countrywide made no representations at the time of the sales regarding the quality of the mortgages.

A third circumstance is if, at the time of entering the contract, one of the contracting parties had no intention of actually performing the contract.  As the Second  Circuit pointed out in Countrywide, the government did not allege such lack of intent, nor did the government offer any evidence of lack of intent at the time of the contracting.  This version of fraud is often difficult to prove and the evidence is usually circumstantial.  But there are ways to prove it.  For example, our Business Litigation Team recently handled a major business case where one of the contracting parties violated the contract within days of entering into the contract.  An immediate breach of the contract can be evidence of fraudulent intent at the time of contracting.

The interplay of fraud and breach of contract can also occur in other circumstances.  And as illustrated by the Countrywide case, even sophisticated parties such as the U.S. Attorneys’ Office in SDNY and federal district judges get it wrong.  The relationship of the two concepts can be complex, and as in most legal claims, much will depend on the specific facts of the case.

Topics: Business Fraud

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We represent companies in business litigation and consumer class actions, including matters involving business fraud and other tort and contract claims, consumer claims, failed business claims, investment/securities claims, government investigations and related claims, and real estate claims. We help clients limit risk, and we also add value by litigating strategically to reduce total legal spend.

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About David Hagopian

For more than 30 years, David G. Hagopian has successfully litigated for, as well as counseled and advised, employers and businesses throughout California. Hagopian defends employers in putative class, collective and representative (PAGA) actions alleging wage and hour violations, as well as in single and multiple plaintiff matters alleging wage and hour violations, wrongful termination, discrimination, harassment, retaliation, failure to accommodate, failure to engage in the interactive process, breach, defamation, and related employment torts. He also advises employers to comply with employment laws, regulations, and ordinances, audits wage and hour practices, prepares and revises employment handbooks, and recommends best employment practices.

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About Jeffrey L. Sikkema

Jeffrey L. Sikkema has been handling general business litigation for over 35 years, representing clients in trials and litigation in federal and state courts throughout the country. He has represented major corporations and companies in virtually every sector of the economy, including financial services, technology and retail, in a wide variety of high stakes business lawsuits and disputes.

His broad range of business litigation experience includes privacy law, Bus. & Prof. Code ยง17200, PAGA, business torts and fraud, breach of contract, unfair competition, trade secrets, investment litigation, failed business deals, and other areas, as well as defending against consumer class actions.

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