Minnesota Law Review

Particulars of Particularity: Alleging Scienter and the Proper Application of Rule 9(b) to Duty-Based Misrepresentations

Claims of negligent misrepresentation and fraud by omission are generally held to be derivatives of fraud. The appropriate pleading standard for fraud is clearly governed by Federal Rule of Civil Procedure 9(b)—fraud claims must be alleged with particularity. However, the circuits are divided when it comes to the proper pleading standard for negligent misrepresentation and fraud by omission claims. As a result, duty-based misrepresentation claims are routinely dismissed for failure to satisfy Rule 9(b)’s particularity requirements. There is an underlying rationale for this circuit split that has not been fleshed out by the courts—claims that sound in fraud should be held to Rule 9(b), while claims that are based in negligence need only meet Rule 8(a). Although courts have bandied the phrase ‘sounds in fraud’ about, none have laid out a coherent definition.

This Note proposes a logical, concise definition for this phrase that resolves the Circuit split and is both internally consistent and harmonious with a common sense approach to what this phrase implies—a claim sounds in fraud when it alleges scienter. The advantages of this solution are plentiful. It does not call for drastic changes to either court procedure or the analysis of misrepresentation claims. Instead, it illuminates the critical elements of misrepresentation claims and allows more plaintiffs to have their case heard on the merits rather than being dismissed through motion practice. The analysis also harmonizes with the historical justification of the particularity requirement for fraud claims and creates a rationally consistent framework for courts to use in their analyses of misrepresentation claims generally, and situates duty-based misrepresentation claims within that context.

:: View PDF

News & Events

  • Welcome

    For nearly one hundred years, the Minnesota Law Review has been a leader amongst academic legal publications. When Professor Henry J. Fletcher launched the journal in 1917, his goal was simple. It was to “contribute a little something to the systematic growth of the whole law.” Since then, the Law [...]

  • Minnesota Law Review Alum Remembered 45 Years After Death

    Minnesota Law Review alumnus Tom Cranna was honored at the Annual Banquet this Spring, 45 years after his death. Mr. Cranna was remembered for his contributions to the journal, the school, and the positive impact he had on his family and friends. The Devil’s Lake Journal published a memorial which [...]

  • Follow MLR on Twitter!

    The Minnesota Law Review is proud to announce that we are now on Twitter. Follow us @MinnesotaLawRev for information and updates concerning the petition period and deadlines, the opening and closing of article submissions, our 2014 Symposium: Offenders in the Community, and all other news concerning our authors and publications. [...]

  • Vol. 97 Lead Piece Cited in Al Jazeera Opinion Piece

    A recent Al Jazeera opinion piece that criticizes the Supreme Court’s Daimler decision cites to Volume 97′s lead piece, How Business Fares in the Supreme Court. You can read the Al Jazeera piece here. Share this: on Twitter on Facebook on Google+

  • Masthead for Volume 99 Board

    The masthead for the Board of Volume 99 of the Minnesota Law Review is now available. You can view the masthead here. Share this: on Twitter on Facebook on Google+


cforms contact form by delicious:days