The elements of fraudulent concealment are similar to that of common law fraud in
- "a relationship between... parties that create a duty to disclose,
- knowledge of the material facts by the party bound to disclose,
- scienter,
- [justifiable] reliance, and
- damage."3
Generally speaking, a relationship between parties is created when there is some sort of contractual, confidential, or fiduciary duty that exists between the two. However, there are some cases in
Despite there being a duty to disclose in many cases, the element of justifiable reliance must be met even if a party chooses to conceal material information or facts from a plaintiff. This means that in order to recover damages in a case for fraudulent concealment, a plaintiff must have been justified in relying on the omission of information. A plaintiff could not be found to have justifiably relied on this lack of information if he failed to find this information, if it was a matter of public record, or could have been found by exercising a standard care of due diligence.6 For example, if a plaintiff could have easily researched a stock price of a company it is looking to invest in, but for some reason a company/defendant is exaggerating such price during a meeting, then the defendant should not be held liable for fraudulent concealment, as such facts are easily verifiable.
Footnotes
1.
2. Id.
3. Aetna Cas. & Sur. Co. v.
4.
5. See id.
6. See Nat'l
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
Mr Andreas Koutsoudakis
KI Legal
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