In order to maintain a cause of action for common law fraud, you must plead and prove the following five elements:
(2) the defendant must have made such statement knowing that it was false;
(3) the defendant must have intended that the statement with the intent that the plaintiff rely on it;
(4) the plaintiff must have acted in reliance on the statement; and
(5) the plaintiff must have been damaged by his reliance on the statement.
However, in order to maintain a cause of action for consumer fraud, you need only prove four elements:
(1) a deceptive act or practice by defendant;
(2) defendant’s intent that plaintiff rely on the deception; and
(3) the deception involved in the course of conduct of trade or commerce; and
(4) actual damage to the plaintiff as a result of the defendant’s violation of the act.
So why is consumer fraud easier to prove than common law fraud?
- Rather than prove that the defendant made a knowingly false statement of material fact to the plaintiff, the plaintiff in a consumer fraud action must only prove that the defendant engaged in a deceptive act or practice. This is broader than common law fraud and fits a wider set of facts.
- Similarly, the plaintiff in a consumer fraud action need not prove that he relied on the defendant’s false statement and was damaged by such reliance. Rather, he need only prove that he was damaged as a result of the defendant’s violation of the act. This is a simpler road to causation.
- Finally, while common law fraud requires proof by clear and convincing evidence, consumer fraud only requires proof by a preponderance of the evidence. This is a lower evidentiary standard, which only demands that the evidence show that the defendant is more likely guilty than not guilty.
The catch is that, in order for the Act to come into play, the alleged fraud must have occurred in the course of trade or commerce. If this requirement is satisfied, the Consumer Fraud Act can be extremely helpful to a potential plaintiff in lowering the exacting standard of pleading and proof required for common law fraud.
Please feel free to call or e-mail me with any questions, or to schedule a free consultation:
Kevin O'Flaherty | (630)324-6666 | firstname.lastname@example.org