misrepresentation
Misrepresentation is a false or misleading statement, or a material omission that renders other statements misleading, made with the intent to deceive or induce reliance. It is a fundamental element of common law fraud and appears in related statutory causes of action, such as securities fraud.
Forms of Misrepresentation
A misrepresentation may occur through an affirmative false statement, a half-truth, or a failure to disclose material facts when there is a duty to speak. In Commonwealth v. Scott, 467 Mass. 336 (2014), a forensic chemist made affirmative misrepresentations by certifying and testifying to drug test results she had not properly conducted. Such deliberate falsifications constitute misrepresentation.
Statements of opinion, however, are generally not actionable unless the speaker does not genuinely hold the stated belief or implies false underlying facts. In Virginia Bankshares, Inc. v. Sandberg, 501 U.S. 1083 (1991), the Supreme Court held that expressions of opinion may amount to misrepresentation when made in the context of trust or reliance and are objectively false. Similarly, in Omnicare, Inc. v. Laborers District Council Construction Industry Pension Fund, 575 U.S. 175 (2015), the Court ruled that opinions such as “we believe” can be actionable if the speaker does not sincerely hold the belief or if the statement includes false implied facts.
Misrepresentation by Omission
A misrepresentation may also occur through omission, where nondisclosure of material information misleads another party in a context imposing a duty to disclose. In Striker v. Graham Pest Control Co., 179 A.D.2d 984 (N.Y. App. Div. 1992), the Court found that a seller’s agent who failed to disclose a carpenter ant infestation committed a misrepresentation, noting that nondisclosure of a material fact is equivalent to an affirmative falsehood when there is a duty to disclose. Similarly, in Drew v. Sylvan Learning Center Corp., 16 Misc. 3d 1115(A) (N.Y. Sup. Ct. 2007), a court held that a tutoring company’s failure to clarify that it used its own internal standards for “grade level” performance constituted a misrepresentation by omission, as it materially misled consumers.
[Last reviewed in October of 2025 by the Wex Definitions Team]
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