The First Department determined plaintiffs’ fraud-based causes of action and the unjust enrichment cause of action were properly dismissed. Plaintiffs alleged defendant fraudulently induced them to sell their business (for $190 million) at a deflated price by concealing that the buyer was a competing business:
Damages for fraud are calculated according to the “out-of-pocket” rule and must reflect “the actual pecuniary loss sustained as the direct result of the wrong” … . Damages may only properly compensate plaintiffs for “what they lost because of the fraud, not . . . for what they might have gained,” and “there can be no recovery of profits which would have been realized in the absence of fraud” … . Here, plaintiffs seek to recover the profits they might have gained had the true identity of the buyer been revealed. But there is no way of knowing what purchase price would have been agreed upon had the buyer’s identity been known. Nor is there any suggestion that the agreed price was unfair … .
Plaintiffs’ fraud-based claims also fail because their reliance on the alleged misrepresentations was not reasonable. Plaintiffs did not press defendant for a contractual warranty regarding the purchaser’s identity, or even for direct answers to their questions on this subject, despite their awareness of defendant’s close relationship with their competitor and suspicions regarding its involvement. ” …
Plaintiffs’ unjust enrichment claim was also properly dismissed. To successfully plead unjust enrichment, “[a] plaintiff must allege that (1) the other party was enriched, (2) at that party’s expense, and (3) that it is against equity and good conscience to permit the other party to retain what is sought to be recovered'” … . Here, the second element is not satisfied. Plaintiffs claim that defendant was unjustly enriched by a $25 million fee received from the competitor for its assistance in facilitating the purchase. Although there is no black-and-white rule that the payment complained of must have been made by the plaintiff itself … , plaintiffs’ claimed entitlement to the fee is too speculative to support their allegation that defendant was enriched “at [their] expense” … . Norcast S.ar.l. v Castle Harlan, Inc., 2017 NY Slip Op 01479, 1st Dept 2-23-17
FRAUD (FRAUD-BASED AND UNJUST ENRICHMENT CAUSES OF ACTION PROPERLY DISMISSED, PLEADING REQUIREMENTS EXPLAINED)/UNJUST ENRICHMENT (FRAUD-BASED AND UNJUST ENRICHMENT CAUSES OF ACTION PROPERLY DISMISSED, PLEADING REQUIREMENTS EXPLAINED)/DAMAGES (FRAUD, DAMAGES ALLEGED CANNOT BE SPECULATIVE, FRAUD-BASED CAUSES OF ACTION DISMISSED)