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34
December 12 • 2013
he year is closing with some
disturbing events — domes-
tic and global. The United
States' two major allies in the Middle
East, Israel and Saudi Arabia, vigorously
opposed the six-month deal with Iran.
Just three days prior to the deal being
cut, the Ayatollah referred to Benjamin
Netanyahu as "the sinister mouth of the
filthy, rabid dog of the region" and that
"the leaders of the Zionist regime are
like wild animals; you cannot call them
human:'
Dismissing the statements as "name
calling," U.S. Secretary of State John
Kerry charged forward and cut the deal
in defiance of our allies. As a sports
enthusiast, I thought the president
understood that you stand with your
allies and cover their backs.
Often times, a friend
will call me claiming they
have been defrauded. The
story typically goes like this:
"Some guy named 'Jerry' was
advertising that he would do
this and that for me. I didn't
believe him, so I didn't buy
the product. Can I sue Jerry
and his company for fraud?"
My answer is, "No, you
can't" I then explain there
are five elements, all of
which must exist to sue someone for
fraud: a material misrepresentation,
knowledge of the falsity or reckless dis-
regard of the truth, the statement must
be made with the intent to induce the
person's action, the person must act in
reliance of the statement and the per-
son must be damaged as a result.
There is no claim of fraud against
Jerry because the reliance and dam-
ages elements are missing since my
friend did not go through with the
transaction. I tell my friend, "Jerry
may be crook and defraud others, but
he has not defrauded you:'
Turning to the Affordable Care Act,
let's examine the president's repeated
words to the effect that, "If you like
your current plan, you can keep it" in
the context of fraud.
These statements were made while
he was seeking support for passage
of the act and reelection. Was this a
material representation? Health care
is certainly a material cost and issue
faced by every American. Was the
statement made with knowledge of
the falsity or reckless disregard of the
truth? My sense is that the president
did not know the statement was false
when it was made initially, and let's
assume he did not know as he repeat-
edly made the statement.
The bigger question is whether it
was made in reckless disregard of the
truth. If you are the proponent of leg-
islation that is the bench-
mark of your first term as
the president of the United
States, isn't it reckless to fail
to make sure that critical
statements about your leg-
islation are accurate — or
at least not blatantly false?
There can be no doubt that
the purpose of the state-
ment was to rally or induce
people to be favorable to
the act's passage — so this
element is met.
If you are one of the many people
who have received notice that your
plan is terminated and you must now
pay significantly more for coverage
with higher deductibles, I can see the
damages.
The reliance element, however, is a
problem. If you supported the passage
of the Affordable Care Act, can you
claim that you did so in reliance of
the president's statement? Though the
statement was made to the American
people to rally support for the bill, the
Affordable Care Act was voted upon
by Congress — not the people. So your
claim of fraud against the president
appears to fail. You're missing the
intended action component of the
"reliance element:'
What I find disturbing is that it is a
far closer call on the claim of fraud relat-
ing to the president's statements than the
claim against Jerry the crook. And that,
coupled with his notion of teamwork, is
a sad statement of current affairs.
❑
Ken Gross is an attorney with Thav Gross
and host of The Financial Crisis Talk
Center show that airs weekly at 8:30 a.m.
Saturdays on WDFN 1130 AM "The Fan"
and 11 a.m. Sundays on MyTV20.