Hi Razor, Sorry for the delay, My kids first week of school.
For informational purposes only.
As you can see I am not a lawyer.
(1) at least in California, constructive fraud is (or pretty much
is) included in the definition of actual fraud so
it's a meaningless distinction; but that (2) it
seems to me that it would have a significant
effect on the kind of evidence that is
needed/introduced in a case. That is, because
constructive fraud depends at least in part on
the notion of a defendant being under a duty of
some sort at the time of the alleged wrongdoing,
a constructive fraud case may focus to a great
extent on whether the defendant competently
discharged his job responsibilities.
A corporate officer or director is under a
duty of "the highest loyalty" or some such duty
to the corporation. Any lapse in the the
performance of his job, if discovered to be
prompted by self-interest, would be a breach of
his fiduciary duties and, as it turns out, also a
constructive fraud on those people to whom he
is supposed to faithfully report (the
stockholders).
So, while proving actual fraud depends in large
part on what a person actually said and whether
the plaintiffs were reasonable in being deceived
by the misrepresentation, constructive fraud
injects all these notions of "duty" and
performance of duty, which typically need not
be present in an actual fraud case. The
tradeoff is that while it entails investigation into
the performance of someone's job
responsibilities, it also gives you a basis to
claim fraud (and seek punitive damages) in the
absence of an affirmative misrepresentation
This is not Legal advise of any sort, but just my off the cuff take on a legal distinction.
I have no idea what course of action Saul's attorney's will take.
Razor, I don't know if this answers your question but it's the best information I have so far.
I will look for a case study.
Christine |
