Misrepresentation

Primary tabs

A misrepresentation is a false or misleading statement or a material omission which renders other statements misleading, with intent to deceive. Misrepresentation is one the elements of common law fraud, and other causes of action for fraud, such as securities fraud.

Misrepresentation through the act of making a false statement can take may forms. For example, in Commonwealth v. Scott, a Massachusetts Supreme Court case, a forensic drug laboratory chemist made a number of affirmative misrepresentations by signing drug certificates and testifying to the identity of substances in cases in which she had not in fact properly tested the substances in question. However, statements of pure opinion are generally not considered misrepresentations. For example, in Virginia Bankshares v. Sandberg, the Supreme Court held that statements of reasons, opinion, or belief are not per se misrepresentations, but may be if there is a context of trust or reliance between the person alleged to make the misrepresentation and the recipient and the statement is objectively false. Additionally, in Omnicare, Inc. v. Laborers District Council Construction, the Supreme Court held that statements of opinion, such as statements prefaced by “we believe,” may be misrepresentations if the speaker does not actually hold that opinion. Also, the opinion stated, if the statement of opinion contains underlying factual assertions (e.g. we believe that our product is the best [statement of opinion] because it outranked other competing products in our laboratory testing [factual assertion]), that factual assertion may be a misrepresentation if untrue.

An omission which renders statements misleading may also be a misrepresentation. For example, in Striker v. Graham Pest Control Co., the Appellate Division of the Supreme Court of New York held that a sellers’ agent who did not disclose a carpenter ant infestation misrepresented the buyers, since “[n]ondisclosure of a material fact is tantamount to an affirmative misrepresentation when a party is duty-bound to disclose pertinent information.” Material omissions in marketing a product may also be misrepresentations. For example, in Drew v. Sylvan Learning Center, Corp., a New York state court found that a tutoring service’s failure to disclose that they measured “grade level” with their own standards in their brochures, as opposed to the common connotation of public school system grade levels, was a misrepresentation through omission.

[Last updated in December of 2020 by the Wex Definitions Team]