The opinion of the court was delivered by: Hon. Stephen M. Orlofsky
This hotly contested and protracted lawsuit, which has generated six published opinions, *fn1 numerous unpublished and bench opinions *fn2 of this Court, as well as one unpublished Opinion of the United States Court of Appeals for the Third Circuit, *fn3 has now presented a difficult question of New Jersey law, which has divided six District Court Judges of the United States District Court for the District of New Jersey, and resulted in the filing of two inconsistent Opinions, by two different panels of the Third Circuit. The question presented is elegant in its deceptive simplicity: What is the standard of proof which governs an action for legal fraud in New Jersey, that is, must legal fraud be proven by a "preponderance of the evidence," or by "clear and convincing" evidence? For the reasons set forth below, I conclude that the most recent decision of the New Jersey Supreme Court to address this issue dictates the conclusion that the clear and convincing standard of proof applies to claims of legal fraud in New Jersey.
With the end of the six-year odyssey of this case in sight after seven weeks of trial, counsel, who have aggressively litigated this matter through one trial, an appeal, and now a lengthy retrial, have drawn their litigation swords once again, this time, over the standard of proof applicable to the Plaintiff, Lithuanian Commerce Corporation's ("LCC") fraud claim.
During a jury charge conference of several hours conducted on Thursday, August 8, 2002, LCC argued that the Court had erroneously ruled that LCC was required to prove its common law fraud claim by clear and convincing evidence. LCC contended that the preponderance of the evidence standard, not the clear and convincing standard, should apply. In support of its argument, LCC directed the Court's attention to a 1993 Third Circuit Opinion, Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153 (3d Cir. 1993), as well as to a Third Circuit Opinion from ten years earlier, Batka v. Liberty Mut. Fire Ins. Co., 704 F.2d 684, 688 (3d Cir. 1983), and an opinion of the United States District Court for the District of New Jersey, Automated Salvage Transp., Inc. v. M.V. Koninklijke KNP BT, 106 F. Supp. 2d 606 (D.N.J. 1999)(Wolin, J.).
In a Bench Opinion, delivered on Friday, August 9, 2002, I ruled that because LCC was seeking monetary damages, its claim was one for legal fraud, and was therefore governed by the "clear and convincing" standard of proof. Tr. at 4125:23-4126:4, Hr'g before Hon. Stephen M. Orlofsky, Lithuanian Commerce Corp. v. Sara Lee, Civ. A. No. 96-1949 (D.N.J. Aug. 9, 2002).
At approximately 6:30 p.m. on Friday, August 9, 2002, the Court received a fax from LCC's counsel, urging me to reconsider my ruling concerning the applicable standard of proof for LCC's fraud claim, again citing the Third Circuit's Opinion in Lightning Lube.
On Saturday, August 10, 2002, I contacted counsel by telephone and requested that counsel for Defendant, Sara Lee Corporation ("Sara Lee"), submit a written response to LCC's request by noon on Sunday, August 11, 2002. Sara Lee faxed its response to the Court as requested at noon on Sunday, August 11, 2002. Sara Lee argued that the Court's previous ruling that LCC must prove its claim of legal fraud by clear and convincing evidence was correct in light of the weight of authority in the New Jersey state courts, and the federal courts of this Circuit, which have addressed the issue.
In the same fax, Sara Lee also asked the Court to reconsider its Jury Charge concerning Breach of Express Warranty, pursuant to N.J. Stat. Ann. § 12A:2-313, Charge No. 27, at ¶ 6. Sara Lee contends that under § 12A:2-313 (2), an assertion of value cannot create an express warranty.
As explained more fully below, I conclude that the Third Circuit's holding in Lightning Lube that the "preponderance of the evidence" standard applies to claims of legal fraud under New Jersey law, has been overruled by the New Jersey Supreme Court's holding in Gennari v. Weichert Co. Realtors, 148 N.J. 582 (1997), and the Third Circuit's subsequent holding in In re Resorts Int'l, Inc., 181 F.3d 505 (3d Cir. 1999), cert. denied, sub nom., Sun Int'l N. Am. v. Lowenschuss, 528 U.S. 1021 (1999), both of which hold that the more demanding standard of "clear and convincing" evidence is the correct burden of proof for claims of legal fraud.I further conclude that N.J. Stat. Ann. § 12A:2-313 provides that statements concerning the value of goods may not create express warranties. Thus, LCC may not base its breach of express warranty claim on the allegation that Sara Lee represented that the Mexican-made pantyhose which are the subject of this dispute had a value of $21.64 per dozen.
C. STANDARD OF PROOF FOR LEGAL FRAUD IN NEW JERSEY
In support of its argument that it need only prove its claim of legal fraud by a preponderance of the evidence, LCC relies upon the Third Circuit's Opinion in Lightning Lube. In that case, the Third Circuit held: "A plaintiff asserting a claim of legal fraud must show that the defendant acted with scienter, but only need prove the elements of fraud by a preponderance of the evidence." Lightning Lube, 4 F.3d at 1182-83 (citing Batka v. Liberty Mutual Fire Ins. Co., 704 F.2d 684, 688 (3d Cir. 1983))(internal citations omitted). LCC also cites to the Third Circuit's 1983 Opinion in Batka, relied upon by the Court of Appeals in Lightning Lube. Batka addressed the question of which standard of proof applied to a defendant insurance company's affirmative defense of fraud in an insurance application. After discussing the different standards of proof applicable to equitable and legal fraud under New Jersey law, the Third Circuit concluded: "In a suit for money damages for fraud, the plaintiff need only prove a case by a preponderance of the evidence. In order to obtain equitable relief such as rescission, however, clear and convincing proof is required." Batka, 704 F.2d ...