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
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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
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