Common Law Fraudulent Misrepresentation and Negligent ..., Study notes of Law

Download Common Law Fraudulent Misrepresentation and Negligent ... and more Study notes Law in PDF only on Docsity! Chapter One Common Law Fraudulent Misrepresentation and Negligent Misrepresentation Michael M. Krauss Greenberg Traurig, LLP Minneapolis 1-1 CHAPTER 1 – MISREPRESENTATION SECTION 1.4 § 1.1 INTRODUCTION The Great Recession generated a slew of claims for misrepresentation that, 10 years later, remain in litigation. Are plaintiffs casting blame for business decisions that succumbed to an unforgiving market? Or did the financial crisis expose actual misrepresentations that otherwise might have gone unnoticed? These questions have been the fulcrum of fraud cases nationwide. This chapter addresses common law claims of fraudulent and negligent misrepresentation, focusing primarily on intentional misstatements or omissions. In addition to exploring the elements, it discusses strategies that plaintiffs and defendants can use to build their case and tell their story. § 1.2 ELEMENTS OF FRAUDULENT MISREPRESENTATION Whether it is called common law fraud, fraudulent misrepresentation, or intentional misrepresentation, the ele- ments of the claim are the same. The first three elements largely address the defendant’s conduct or state of mind, and the last two address the plaintiff’s. The elements are: (1) The defendant made a false representation of a past or existing material fact susceptible of knowledge. (2) The defendant did so knowing the representation was false, or without knowing whether it was true or false. (3) The defendant intended to induce the plaintiff to act in reliance on that representation. (4) The plaintiff acted in reliance on the defendant’s false representation. (5) The plaintiff suffered pecuniary damage as a result of that reliance. Valspar Refinish, Inc. v. Gaylord’s, Inc., 764 N.W.2d 359, 368 (Minn. 2009); Hoyt Props. v. Prod. Res. Grp., LLC, 736 N.W.2d 313, 318 (Minn. 2007); Specialized Tours, Inc. v. Hagen, 392 N.W.2d 520, 532 (Minn. 1986). See also Martens v. Minnesota Mining & Mfg. Co., 616 N.W.2d 732, 747 (Minn. 2000) (breaking down claim into seven ele- ments); Davis v. Re-Trac Mfg. Corp., 149 N.W.2d 37, 38–39 (Minn. 1967) (11 elements). § 1.3 FALSITY Truth is an absolute defense to a claim of misrepresentation. “It is axiomatic that fraud cannot be predicated on the truth. A true representation is not actionable.” Franklin Theatre Corp. v. City of Minneapolis, 198 N.W.2d 558, 560 (Minn. 1972) (quoting Rien v. Cooper, 1 N.W.2d 847, 851 (Minn. 1942)). § 1.4 REPRESENTATION BY AFFIRMATIVE MISSTATEMENT OR BY OMISSION An affirmative misstatement—saying or writing something that is not true—is the most common form of false representation. But if there is a duty to disclose, silence may also constitute fraud. A failure to speak is actionable if there is a “suppression of facts which one party is under a legal or equitable obligation to communicate to the other, and which the other party is entitled to have communicated to him.” Richfield Bank & Trust Co. v. Sjogren, 244 N.W.2d 648, 650 (Minn. 1976). The Minnesota Supreme Court has identified three “special circumstances” in which silence may be fraudulent. A. Half-Truth “One who speaks must say enough to prevent his or her words from misleading the other party.” Id.; see also Heidbreder v. Carton, 645 N.W.2d 355, 367 (Minn. 2002) (“A duty to disclose may exist … when disclosure Updated 2019 SECTION 1.4 BUSINESS DISPUTES: CLAIMS AND REMEDIES 1-2 would be necessary to clarify information already disclosed.”). For example, in Commercial Property Investments, Inc. v. Quality Inns Int’l, Inc., 938 F.2d 870, 877 (8th Cir. 1991), the defendant hotel franchisor touted the prospects of building a hotel in Roseville, citing the high occupancy rates of nearby hotels and the proximity of a civic center. The Eighth Circuit held that the defendant may be liable for fraud because it did not further disclose that the nearby hotels enjoyed advantages the new project lacked, and the civic center was failing. Commercial Prop. Inv. Inc., 938 F.2d at 877 (applying Minnesota law). B. Special Knowledge “One who has special knowledge of material facts to which the other party does not have access may have a duty to disclose these facts to the other party.” Richfield Bank, 244 N.W.2d at 650. The party with special knowledge must “‘know[] that the other party acts on the presumption that no such facts exist.’” Driscoll v. Standard Hardware, Inc., 785 N.W.2d 805, 812 (Minn. Ct. App. 2010) (quoting Richfield Bank). This exception rarely applies, particularly “in arm’s-length business transactions between commercial entities.” Id. at 813. Richfield Bank was one of those rare instances. The plaintiff borrower sought financing to purchase goods from a manufacturer, which also was a depositor at the defendant bank. Richfield Bank, 244 N.W.2d at 649. The plaintiff executed a promissory note for the purchase, the proceeds of which went to the manufacturing company. Id. At that time, the bank’s loan officer knew that the manufacturer was irretrievably insolvent, but said nothing. Id. at 649–50. The bank was found liable for fraud because the bank knew there was no reasonable way the manufacturer would fulfill its obligation to plaintiff. Id. at 651–52. C. Confidential or Fiduciary Relationship “One who stands in a confidential or fiduciary relation to the other party to a transaction must disclose mate- rial facts.” Id. at 650. Trustees, attorneys, and business partners may be among those with a duty to disclose. See, e.g., Appletree Square I Ltd. P'ship v. Investmark, Inc., 494 N.W.2d 889, 892 (Minn. Ct. App. 1993) (in selling property to fellow partners in a limited partnership, defendants had fiduciary duty to disclose presence of asbestos); In re Boss, 487 N.W.2d 256, 259 (Minn. Ct. App. 1992) (attorney had fiduciary duty to disclose his beneficial interest in client’s transaction). § 1.5 PAST OR EXISTING FACTS SUSCEPTIBLE OF KNOWLEDGE For a representation to be actionable, the subject of the alleged misstatement must be knowable as either true or false. The pattern jury instructions explain: “This means it must be possible to discover the fact.” CIVJIG 57.10. Statements about past or existing facts generally are actionable, but predictions, opinions, and statements of law typi- cally are not. A. Statements About the Future A statement about the future—i.e., a prediction or projection—does not support a claim of fraud just because the forecasted event does not occur. Vandeputte v. Soderholm, 216 N.W.2d 144, 147 (Minn. 1974); see also Valspar, 764 N.W.2d at 369 (alleged misrepresentations were not actionable because they “were expressions of confidence that the paint application problems would be resolved, and thus were predictions of future results”); Kennedy v. Flo-tronics, Inc., 143 N.W.2d 827, 830 (Minn. 1966) (no fraud where “the prophecy or prediction of future value or profits is made in good faith and without a misrepresentation of fact”). Updated 2019 1-3 CHAPTER 1 – MISREPRESENTATION SECTION 1.6 That said, a statement about the future may give rise to fraud in at least two circumstances. First, a prom- ise to perform may be fraudulent if “the promisor had no intention to perform at the time the promise was made.” Martens v. Minn. Mining & Mfg. Co., 616 N.W.2d 732, 747 (Minn. 2000) (quoting Vandeputte, 216 N.W.2d at 147). “A subsequent intention to break the promise or failure to fulfill it does not constitute fraud.” Benson v. Rostad, 384 N.W.2d 190, 195 (Minn. Ct. App. 1986). Affirmative evidence of the promisor’s contemporaneous intent is re- quired. Vandeputte, 216 N.W.2d at 147; Kramer v. Bruns, 396 N.W.2d 627, 631 (Minn. Ct. App. 1986). Second, predictions or projections may be fraudulent if they fail to “reflect past or present facts.” Berg v. Xerxes-Southdale Office Bldg. Co., 290 N.W.2d 612, 615 (Minn. 1980) (positive cash flow projection was actionable where defendant concealed current year’s negative cash flow). Without new facts that would presage a turnaround, optimistic forecasts that are inconsistent with prior or current performance may amount to fraud. The Minnesota Supreme Court stated: “Projections should be considered actionable or not in fraud, depending upon whether they accurately reflect past and present circumstances.” Id. B. Statements of Pure Opinion Expressions of pure opinion do not amount to fraud. “A wide variety of statements ordinarily used in sales negotiations are not actionable as fraud. These include ordinary sales puffing, statements of opinion, and promises of future performance.” Am. Computer Trust Leasing v. Jack Farrell Implement Co., 763 F. Supp. 1473, 1487 (D. Minn. 1991) (citations to Minnesota law omitted), aff’d, 967 F.2d 1208 (8th Cir. 1992). For example, in American Computer Trust, the defendant’s statements that it was a “proven dealer in data processing” and “capable of dramati- cally increasing efficiency and profitability” were not actionable. Am. Computer Trust, 763 F. Supp. at 1487; see also Smith v. Brutger Cos., 569 N.W.2d 408, 414 (Minn. 1997) (same for statements that building was “luxury apartment complex” and a “very safe environment”). C. Statements of Law An abstract statement of law or pure legal opinion likewise cannot be a fraudulent misrepresentation. Hoyt, 736 N.W.2d at 318. “[T]he law is presumed to be equally within the knowledge of both parties.” Miller v. Osterlund, 191 N.W. 919, 919 (Minn. 1923). There are two exceptions, however. A general statement of law may be action- able when the speaker either “is learned in the field and has taken advantage of the solicited confidence of the party defrauded,” or “stands with reference to the person imposed upon in a fiduciary or other similar relation of trust and confidence.” Northernaire Prods., Inc. v. Cnty. of Crow Wing, 244 N.W.2d 279, 281 (Minn. 1976) (quoting Stark v. Equitable Life Assurance Soc’y, 285 N.W. 466, 469 (Minn. 1939)). Additionally, a legal opinion that also “carries an implication of fact” may be actionable. Hoyt, 736 N.W.2d at 318. A mixed statement of law and fact may give rise to a fraud claim if: (1) it implies that facts exist that support the legal opinion expressed; and (2) the other party would ordinarily have no knowledge of those facts. Id. (allowing fraud claim to proceed where attorney stated there was no way to pierce the corporate veil, thereby implying that no facts existed to support veil piercing). § 1.6 DIRECT CONTACT NOT REQUIRED The defendant need not communicate the misrepresentation directly to the plaintiff and may retain responsibil- ity for false statements communicated through a third party. If the defendant knows and intends that the third party will relay the misrepresentation to the plaintiff, the defendant may be liable for fraud. Personal contact between the plaintiff and the defendant is not required. See Vikse v. Flaby, 316 N.W.2d 276, 284 (Minn. 1982) (corporate officers and directors were liable for false statements to broker who passed on misinformation to potential investors); see also Updated 2019 SECTION 1.8 BUSINESS DISPUTES: CLAIMS AND REMEDIES 1-6 fendant as greedy or immoral. As discussed earlier, a common narrative is the defendant who is desperate to keep their business afloat. Jurors can sympathize with a defendant who made a bad choice, but they should still find the defendant liable for fraud. B. Showing an Innocent State of Mind On the flip side, the defendant should develop a competing narrative showcasing his or her innocent state of mind. It rarely suffices to tackle the alleged misrepresentations one by one—e.g., the first was technically true, the plaintiff did not actually rely on the second, the third was mere puffery, and so on. The plaintiff always bears the burden of proof. But jurors—and judges on summary judgment—should understand the defendant’s view of the big picture. 1. Lack of Motive If possible, a defendant should demonstrate there was no motive to defraud. For example, a sales agent may be accused of making a false representation to earn a commission. Why would a broker risk his or her all- important reputation just to earn a commission that is a fraction of annual compensation? 2. Knowledge at the Time, Not in Hindsight In another scenario, subsequent events may establish beyond dispute that the defendant’s prior represen- tations were false. The defendant should then focus the judge and jury on what it knew and understood at the time, no matter what happened next. For example, the defendant may be the middleman who caused the plaintiff to do busi- ness with a now-insolvent company whose insiders have been exposed as criminals. How can the defendant counter accusations that it knowingly misrepresented the insolvent company’s financial condition? The defendant may try to develop a narrative that it too was misled. While the insiders’ misconduct may now be public, no one knew about it at the time. Instead, the defendant relied on market indicators—such as stock price, credit ratings, independent audit re- ports, and blue-chip clientele—that reflected a healthy and profitable company. To the extent the plaintiff now alleges that the defendant knew of “red flags” suggesting fraud, the plaintiff has the benefit of hindsight: at the time, those same facts were insignificant against the backdrop of the company’s sterling reputation and strong performance. The defendant can strengthen its story if it also lost money in its own dealings with the company. 3. Focus on the Plaintiff A fraud defendant will typically spotlight the plaintiff’s own conduct, knowledge, and motives. As detailed below, the plaintiff’s experience, savvy, and intelligence is central to evaluating reasonable reliance. If pos- sible, the defendant may want to show that the plaintiff was a sophisticated entity with industry expertise, had access to material information, and itself sought to score a huge profit despite known or knowable risks. Now, the defendant may argue, the plaintiff seeks to blame someone else for the consequences of its own decisions. If the plaintiff had a hand in the fraud, the defendant may invoke the equitable doctrine of in pari delicto. This doctrine “operates to prevent wrongdoers at equal fault from recovering against one another,” and it applies when the plaintiff knowingly and willingly participates in the misconduct. Christians v. Grant Thornton LLP, 733 N.W.2d 803, 810, 814 (Minn. Ct. App. 2007). It typically comes into play when the plaintiff is a trustee or receiver of a now-insolvent company that perpetrated a fraud, and the earlier corporate misconduct is imputed to the trustee or receiver who now stands in the company’s shoes. Id. Updated 2019 1-7 CHAPTER 1 – MISREPRESENTATION SECTION 1.10 4. Proactive Investigation A defendant should not wait for discovery to develop the facts that compose its competing narrative. The defendant’s counsel should consider immediately collecting core documents and interviewing key witnesses, before memories fade and employees leave. To ensure that the interview notes and memoranda are not discoverable, outside counsel should conduct the interviews, inform employees that these are privileged and confidential communications for the purpose of providing legal advice, and instruct them not to discuss the litigation among themselves or anyone else. § 1.9 ACTUAL RELIANCE The plaintiff must actually rely on the false representation to his or her detriment. In other words, the plaintiff must establish that the misrepresentation in fact affected his or her conduct. The misrepresentation need not be the sole cause of the plaintiff’s conduct, but it must have been a “substantial factor” in causing the plaintiff to act. Davis v. Re-Trac Mfg. Corp., 149 N.W.2d 37, 39 (Minn. 1967). Where the statement did not alter the plaintiff’s course of action, however, he or she did not rely on it. For ex- ample, in Popp Telecom, Inc. v. American Sharecom, 361 F.3d 482, 491–92 (8th Cir. 2004), the plaintiffs were dis- senting shareholders who failed to prevent a corporate merger; they then sued and alleged that the acquiring corpora- tion made false representations in trying to induce them to sell their shares. However—even though the merger went through—the plaintiffs could not establish actual reliance because they were never convinced to sell their shares and instead voted against the merger. Popp Telecom, Inc., 361 F.3d at 491–92 (applying Minnesota law). Likewise, there can be no reliance when the plaintiff took the complained-of action before learning of the alleged misrepresentation. Watkins v. Lorenz, 119 N.W.2d 482 (Minn. 1963); Rien v. Cooper, 1 N.W.2d 847, 853 (Minn. 1942) (“Fraud cannot be predicated upon a representation made subsequent to the act claimed to have been induced thereby.”). § 1.10 REASONABLE RELIANCE It is not enough that the plaintiff actually rely on the fraudulent misrepresentation; the plaintiff’s reliance must be reasonable. Hoyt Props. v. Prod. Res. Grp., LLC, 736 N.W.2d 313, 321 (Minn. 2007). The reasonableness of reliance is a subjective standard that varies by the specific plaintiff. “Reliance in fraud cases is generally evaluated in the context of the aggrieved party’s intelligence, experience, and opportunity to inves- tigate the facts at issue.” Valspar Refinish, Inc. v. Gaylord’s, Inc., 764 N.W.2d 359, 369 (Minn. 2009). One standard applies to the individual of limited education who ventures outside of his or her field to do business with a large company, and another to a sophisticated corporation that engages in a typical transaction with a comparable business entity. As the Eighth Circuit put it: “Fraud must be proved with reference to the specific intelligence and experience of the party alleging it.” Children’s Broad. Corp. v. Walt Disney Co., 245 F.3d 1008, 1020 (8th Cir. 2001) (applying Minnesota law). Reasonableness cannot typically be resolved on summary judgment and usually is a fact-intensive question for the jury to decide—even when the plaintiff is sophisticated, educated, and experienced in the matters at hand. Hoyt, 736 N.W.2d at 321 (holding that reasonable reliance was a jury question despite plaintiff’s extensive business and legal background). “A party can reasonably rely on a representation unless the falsity of the representation is known or obvious to the listener.” Id. (citing Spiess v. Brandt, 41 N.W.2d 561, 566 (Minn. 1950)). There is no duty to investigate, id., but a party who does investigate is held to the results of his or her investigation. “When a party conducts an independent Updated 2019 SECTION 1.10 BUSINESS DISPUTES: CLAIMS AND REMEDIES 1-8 factual investigation before it enters into a commercial transaction, that party cannot later claim that it reasonably relied on the alleged misrepresentation.” Valspar, 764 N.W.2d at 369 (reliance was not reasonable where both parties were “sophisticated business equals operating in a commercial setting,” and plaintiff conducted its own investigation and experimentation on defendant’s product). A. Reliance on Extra-Contractual Representations Although the reasonableness of reliance is usually ill-suited for summary judgment, there is an exception to this general rule. In a common scenario, the plaintiff alleges that the defendant’s fraudulent misrepresentation in- duced it to enter into a written contract. But if the written contract directly contradicts the alleged oral misrepresenta- tion, reliance on the oral statement is unreasonable as a matter of law. Dahmes v. Indus. Credit Co., 110 N.W.2d 484, 490 (Minn. 1961). In other words, if “the written contract provision explicitly stated a fact completely contradictory to the claimed misrepresentation,” the plaintiff cannot establish reasonable reliance. Johnson Bldg. Co. v. River Bluff Dev. Co., 374 N.W.2d 187, 194 (Minn. Ct. App. 1985). The Minnesota Court of Appeals has increasingly invoked this rule to resolve fraud claims on summary judgment, but it has not designated its decisions for publication. The key question is: Can the alleged oral misrepresentation and the written contract provision both be true? The court carefully compares the content of the alleged oral misrepresentation with the text of the written contract. If the plaintiff could accept both as true, then reliance on the oral statement may remain reasonable. But if the oral representation cannot be reconciled with the parties’ agreed writing, then reliance is unreasonable as a matter of law. For example, in Crowell v. Campbell Soup Co., 264 F.3d 756, 762–64 (8th Cir. 2001), the plaintiff farmers alleged that the defendant induced them to enter into a poultry production contract through a variety of oral misrep- resentations, including that the contract could be terminated only for cause, that there would be a long-term com- mitment to continue placing flocks with the plaintiffs beyond 35 to 40 flocks, and that the plaintiffs would realize a certain amount of profits per year after the first seven or eight years. The Eighth Circuit scrutinized each alleged misrepresentation, and found that none could be reconciled with the contract’s written terms. Crowell, 264 F.3d at 762–64. First, the contract permitted termination “essentially any time,” which “plainly contradicts” the alleged oral promise to terminate only “for cause.” Id. at 763. Second, the alleged long-term commitment beyond 35 to 40 flocks was likewise “in plain contradiction of the written contract provisions granting to [the defendant] the express right to terminate the contracts prior to the placement of 35 or 40 flocks.” Id. (emphasis in original). Third, the alleged rev- enue misrepresentation also “plainly contradicts” the contract’s termination-at-will provision and payment schedule. Id. at 763–64. Where, however, the plaintiff could conceivably accept as true both the oral and the written statements without inconsistency, reasonable reliance remains for the jury. For example, in Northstar Industries, Inc. v. Merrill Lynch & Co., Inc., 558 F. Supp. 2d 944 (D. Minn. 2008), the plaintiff broker alleged it slashed its finder’s fee from $7.1 million to $1.5 million in reliance on the defendant’s representation that all parties were taking pro rata cuts to close a deal, which otherwise “would be dead.” The defendant contended that any claim of fraudulent inducement was directly contradicted by the parties’ written agreement, which stated that defendant would “in no case” pay plaintiff more than $1.5 million. The court disagreed and explained that “such contract language does not contradict alleged promises about pro rata reductions and the potential death of the deal. Indeed, the … agreement contains no reference to pro rata reductions or deal saving actions, and without explicit mention of these matters, there can be no complete contradiction.” Northstar Indus. Inc., 558 F. Supp. 2d at 949. Updated 2019 1-11 CHAPTER 1 – MISREPRESENTATION SECTION 1.12 (Minn. 1934) (“defrauded parties cannot disaffirm a contract after having affirmed it with knowledge of the fraud”). “To establish a waiver or ratification of fraud, there must be evidence that the waiving party had full knowledge of the facts and his or her legal rights, and intended to relinquish these rights.” Carpenter, 409 N.W.2d at 262. C. Punitive Damages A plaintiff alleging fraudulent misrepresentation may ask to recover punitive damages. The purpose of puni- tive damages is to punish the defendant and deter others from similar misconduct; it is not to compensate the plaintiff. See CIVJIG 94.10; Hodder v. Goodyear Tire & Rubber Co., 426 N.W.2d 826, 837 (Minn. 1988). The plaintiff must prove by “clear and convincing evidence that the acts of defendant show deliberate disregard for the rights or safety of others.” minn. stat. § 549.20, subd. 1(a). “Deliberate disregard” means that the defendant: (1) knew or intentional- ly ignored facts that created a high probability of injury to the rights or safety of others; and (2) deliberately acted with conscious or intentional disregard or with indifference to that risk. minn. stat. § 549.20, subd. 1(b); CIVJIG 94.10. The statute specifies various factors for the jury to consider in deciding the amount of punitive damages. minn. stat. § 549.20, subd. 3. The initial complaint may not seek punitive damages. minn. stat. § 549.191. Instead, the plaintiff must move to amend the pleadings and show the factual basis for claiming punitive damages. Id. The court shall permit amendment if it finds prima facie evidence in support. Id. “‘Prima facie’ does not refer to a quantum of evidence, but to a procedure for screening out unmeritorious claims for punitive damages.” Swanland v. Shimano Indus. Corp., Ltd., 459 N.W.2d 151, 154 (Minn. Ct. App. 1990). The court continued: “The trial court may not allow an amend- ment where the motion and supporting affidavits ‘do not reasonably allow a conclusion that clear and convincing evidence will establish the defendant acted with [deliberate disregard]….’” Id. (quoting McKenzie v. N. States Power Co., 440 N.W.2d 183, 184 (Minn. Ct. App. 1989)). § 1.12 NEGLIGENT MISREPRESENTATION Negligent and fraudulent misrepresentation share many common elements. “We have said in the past that negli- gent misrepresentation constitutes fraud.” Hardin Cnty. Sav. Bank v. Housing & Redevelopment Auth. of the City of Brainerd, 821 N.W.2d 184, 191 (Minn. 2012) (citing Gen. Ins. Co. of Am. v. Lebowsky, 252 N.W.2d 252, 255 (Minn. 1977)). There are important differences, however. Chiefly, to be liable for negligent misrepresentation, the defendant need act only negligently, and not dishonestly or in bad faith. See Florenzano v. Olson, 387 N.W.2d 168, 173 (Minn. 1986) (“Fraud is distinguished from negligence by the element of scienter required.”). To avoid widespread liability, the Minnesota Supreme Court has also narrowed the scope of a negligent misrepresentation claim—in particular, by limiting the duty of care. The elements are: (1) the defendant was acting in the ordinary course of their business, profession, or employment, or in any other transaction in which the defendant has a pecuniary interest; (2) the defendant owed a duty of care to the plaintiff; (3) the defendant supplied false information to guide the plaintiff in the plaintiff’s own business transac- tions; (4) the defendant failed to exercise reasonable care in communicating the information; (5) the plaintiff justifiably relied on the false information; and Updated 2019 SECTION 1.12 BUSINESS DISPUTES: CLAIMS AND REMEDIES 1-12 (6) the plaintiff was financially harmed by relying on the information (i.e., suffered pecuniary loss). Hardin Cnty. Sav. Bank, 821 N.W.2d at 192; Williams v. Smith, 820 N.W.2d 807, 815 (Minn. 2012); Bonhiver v. Graff, 248 N.W.2d 291, 298 (Minn. 1976). A. Duty of Care The nature of the parties’ relationship determines whether a duty of care exists in communicating informa- tion. Particular professional or fiduciary relationships can give rise to a duty of care because one party is entitled to legal protection. The Minnesota Supreme Court has “recognized a duty exists in professional relationships such as an accountant/client and an attorney/client, and in certain fiduciary relationships involving, for example, guardians, ex- ecutors, and directors of corporations.” Williams, 820 N.W.2d at 816 (citing cases). See also Hardin Cnty. Sav. Bank, 821 N.W.2d at 193–94 (holding that banks stated claim of negligent misrepresentation against appraiser for allegedly faulty appraisal and feasibility study). But the Minnesota Supreme Court has generally hesitated to recognize a duty outside of a professional or fiduciary relationship. The most notable exception is M.H. v. Caritas Family Services, 488 N.W.2d 282 (Minn. 1992), where the court held a special legal relationship existed because one party had superior knowledge. There, an adop- tion agency undertook to disclose some information about the birth parents and their genetic history, but withheld other facts that rendered the information misleading. M.H., 488 N.W.2d 282. The supreme court held that public policy favored a duty of care to protect the adoptive parents against the agency’s conduct. Id. More recently, the supreme court stressed the “limited scope of negligent misrepresentation.” Williams v. Smith, 820 N.W.2d 807, 817 (Minn. 2012). The court wrote, “our recent cases have carefully limited recognition of the tort of negligent misrepresentation, against both private actors and government officials…. These recent decisions are consistent with earlier decisions in which we have rejected an expansive view of both negligent misrepresentation and government liability.” Id. at 821 (citations omitted). In Williams, a would-be assistant coach sued Tubby Smith, the head basketball coach at the University of Minnesota. The plaintiff quit his job on receiving an employment offer from Smith, only to be told the next day that the athletic director nixed the offer. Id. at 809–10. The plaintiff alleged that Smith negligently misrepresented his au- thority to hire. The supreme court found that Smith, as a government employee, owed no duty of care to the plaintiff, as a prospective government employee. Id. at 815–22. The court gave three reasons. First, the plaintiff and Smith did not stand in a professional or fiduciary relationship, Smith was not advising the plaintiff, and Smith did not have superior knowledge or expertise. Id. at 818–19. Second, the nature of the relationship “was that of two sophisticated business people, both watching out for their individual interests while negotiating at arm’s length.” Id. at 819. Third, there was no public policy rationale to impose a duty between sophisticated parties negotiating prospective employ- ment. Id. The Minnesota Court of Appeals similarly has held that no duty of care exists in a commercial transaction “where adversarial parties negotiate at arm’s length.” Smith v. Woodwind Homes, Inc., 605 N.W.2d 418, 424 (Minn. Ct. App. 2000) (affirming dismissal of negative misrepresentation claim); see also Safeco Ins. Co. of Am. v. Dain Bosworth, Inc., 531 N.W.2d 867, 871 (Minn. Ct. App. 1995) (same). While the Minnesota Supreme Court has side- stepped this issue, it has observed that “other state courts that have considered the issue have not extended the duty of care to an arm’s length commercial transaction.” Williams, 820 N.W.2d at 817 (citing cases). The court continued: “The underlying reasoning is that sophisticated parties negotiating a commercial transaction are entitled to legal pro- tection only for intentional, fraudulent conduct.” Id. (citing Restatement (second) of toRts § 552 (1979)). Updated 2019 1-13 CHAPTER 1 – MISREPRESENTATION SECTION 1.12 B. Reasonableness of Reliance In considering whether the plaintiff’s reliance on a negligent misrepresentation was reasonable, courts use much the same analysis that applies to reliance on an intentional misrepresentation. But the case law flags at least one significant distinction. A specific written disclaimer that addresses the subject of an intentional misrepresenta- tion typically does not preclude justifiable reliance as a matter of law. With respect to a negligent misrepresentation, however, a specific disclaimer does preclude reliance. For example, in Dakota Bank v. Eiesland, 645 N.W.2d 177, 183–85 (Minn. Ct. App. 2002), the plaintiff bank alleged that it relied on audited compiled financial statements that it received from the defendant accountants, even though the statements “contained disclaimers clearly stating that the statements were based on the unaudited representations of the company’s management and that the accountants did not express an opinion on them.” The court of appeals held that these disclaimers barred the bank’s negligent misrep- resentation claim, but they did not bar the claim for intentional misrepresentation. Eiesland, 645 N.W.2d at 183–85. Another example is McIntosh County Bank, in which the Minnesota Court of Appeals held that a specific disclaimer of reliance barred a claim of negligent misrepresentation as a matter of law. McIntosh Cnty. Bank v. Dorsey & Whitney LLP, 726 N.W.2d 108, 119–20 (Minn. Ct. App. 2007), rev’d in part on other grounds, McIntosh Cnty. Bank v. Dorsey & Whitney LLP, 745 N.W.2d 538 (Minn. 2008). The case involved a loan participation agree- ment through which various banks purchased interests in a casino loan. The participating banks alleged that the lead lender’s counsel misrepresented the enforceability of the loan. The court of appeals held that any reliance was not jus- tifiable in light of the specific disclaimers in the participation agreement. Id. at 120. The contract required the banks to affirm that they had made “an independent and informed judgment” with respect to the loan, and to acknowledge that the lead lender made no warranty or representation regarding enforceability. Id.; see also Leonard v. Dorsey & Whitney LLP, 553 F.3d 609, 630 (8th Cir. 2009) (under the Minnesota Court of Appeals’ decision in McIntosh, the contractual disclaimer “effectively negates” the justifiability of the participating banks’ reliance). C. Standard of Care, Comparative Fault, and Damages A defendant accused of negligent misrepresentation is held to the standard of care of a reasonably prudent person in the profession. See Florenzano v. Olson, 387 N.W.2d 168, 174 (Minn. 1986) (“A misrepresentation is made negligently when the misrepresenter has not discovered or communicated certain information that the ordinary per- son in his or her position would have discovered or communicated.”); Grueling v. Wells Fargo Home Mortg., Inc., 690 N.W.2d 757, 760 (Minn. Ct. App. 2005) (“An objective standard of reasonable care is applied to those who make misrepresentations in the course of their employment.”). Consistent with this standard of care, “the principles of comparative responsibility apply to negligent mis- representation.” Florenzano, 387 N.W.2d at 176 (holding that trial court properly applied comparative fault statute). In the same vein, a plaintiff may not recover punitive damages for a negligent misrepresentation. See Utecht v. Shopko Dep’t Store, 324 N.W.2d 652, 654 (Minn. 1982) (no punitive damages for negligent conduct). The plaintiff may recover only his or her pecuniary loss. Smith v. Brutger Cos., 569 N.W.2d 408 (Minn. 1997); Flynn v. Am. Home Prods. Corp., 627 N.W.2d 342, 351 (Minn. Ct. App. 2001). D. Economic Loss Doctrine and Minnesota Statutes Section 604.101 Under Minnesota Statutes section 604.101, a “buyer may not bring a common law misrepresentation claim against a seller relating to the goods sold or leased unless the misrepresentation was made intentionally or recklessly.” This statute bars a buyer’s negligent misrepresentation claim that relates to the goods sold or leased. Valspar Refin- ish Inc. v. Gaylord’s, Inc., 764 N.W.2d 359, 369–70 (Minn. 2009) (holding section 604.101 barred claim that seller Updated 2019