Caper, et al. v. Foley & Lardner LLP, et al. (Lawyers Weekly No. 09-009-17)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION No. 2016-1986 BLS 1 ADAM CAPER, et al vs. FOLEY & LARDNER LLP and GABOR GARAI ORDER ON PARTIAL MOTION TO DISMISS COUNTERCLAIM This motion presents the narrow issue of whether certain words allegedly used by plaintiff, Adam Caper, when he engaged the defendant law firm, Foley & Lardner LLP (“F&L”), are actionable as misrepresentations. F&L alleges in its counterclaim that it was induced to enter into a lawyer – client relationship with Caper by the following words: Caper informed Garai that he had developed an idea for a new business, which, he asserted, was beginning to do well until the 2008 “crash,” referring to the Recession of 2008. Caper represented in words or substance to Garai that he, Caper, was a successful entrepreneur, businessman, and consultant. F&L pleads that it can prove that the representations are demonstrably false. Caper argues that to assert misrepresentation based on the above alleged statements fails to state a cognizable claim because the words are mere statements of Caper’s opinions, not facts that can be relied upon. “The distinction between a statement of fact and a statement of opinion is often a difficult one to draw.” McEneaney v. Chestnut Hill Realty Corp., 38 Mass. App. Ct. 573, 575 (1995). “In construing what is the true meaning of the language used, it is often necessary to consider the subject matter, the relationship of the parties, the opportunity afforded for investigation and 1 reliance, and the attendant circumstances.” John A. Frye Shoe Co. v. Williams, 312 Mass. 656, 665 (1942). On a motion to dismiss, I am required to draw all reasonable inferences in favor of the claimant. Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011). In doing so, I find that it is at least plausible that Caper’s statements may “reasonably [have been] understood by the recipient [F&L] as implying that there are no facts that are incompatible with it.” McEneaney, 38 Mass. App. Ct. at 575. In truth, I cannot tell whether it would be reasonable for a sophisticated law firm to understand’s Caper’s comments as statements of fact. The reasonableness will turn on all the attendant circumstances. Evidence of the attendant circumstances will be produced at trial or, perhaps, by a motion for summary judgment. But I am constrained to allow the claim to proceed at this stage. Caper’s partial motion to dismiss the counterclaim (Paper No. 19) is DENIED. By the Court, Edward P. Leibensperger Justice of the Superior Court Date: September 8, 2017 2 Full-text Opinions