Business Torts

Tollefsen Law has in depth experience litigation business torts such as negligent misrepresentation, fraud in the inducement, and tortious interference with prospective advantage. In addition there are some statutory tort-like causes of action including consumer protection claims, criminal profiteering, and securities fraud. We have represented our clients both as plaintiffs and defendants. Fingerprint on computer chip Email us regarding a potential new matter – no confidential information

Tollefsen Law has extensive experience complex business and commercial litigation including business torts.

Civil Conspiracy

The elements of civil conspiracy are that (1) a combination or more people to accomplish an unlawful purpose, or to accomplish a lawful purpose by unlawful means; and (2) entering into an agreement to accomplish the conspiracy.((Adams v. King County, 164 Wash. 2d 640, 192 P.3d 891 (2008) (trial court erroneously dismissed claim for civil conspiracy where defendants allegedly removed organ from plaintiff’s decedent without her consent); Woody v. Stapp, 146 Wash. App. 16, 189 P.3d 807 (Div. 3 2008) (trial court properly dismissed claim for civil conspiracy where speculation did not meet clear, cogent and convincing standard); All Star Gas, Inc., of Washington v. Bechard, 100 Wash. App. 732, 998 P.2d 367 (Div. 3 2000) (evidence supported trial court’s finding that no civil conspiracy had been formed).)) Both elements must be established by clear, cogent, and convincing evidence.(( Woody v. Stapp, 146 Wash. App. 16, 189 P.3d 807 (Div. 3 2008); All Star Gas, Inc., of Washington v. Bechard, 100 Wash. App. 732, 998 P.2d 367 (Div. 3 2000).)) Civil conspiracy is not a separate cause of action but is a theory to make defendants jointly and severally liable for another civil cause of action. Conspirators who join the conspiracy after it was formed between become liable for all acts committed by any of the other parties, either before or after their entrance, in furtherance of the common design.(( Lyle v Haskings, 24 Wash.2d 883, 900, 168 P.2d 797, 807 (1946); Sterling Business Forms, Inc. v. Thorpe, 82 Wash.App. 446, 454, 918 P.2d 531, 535 (Div. 3, 1996).))

Consumer Protection What is Fraud?

Unjust Enrichment Four Theories of Recovery for Misrepresentation

Negligent Misrepresentation Securities Fraud

Uniform Fraudulent Transfer Act

Under the Uniform Fraudulent Transfer Act (UFTA) a transfer is fraudulent “whether the creditor’s claim arose before or after the transfer was made or the obligation was incurred” if the debtor conducted it with “actual intent to hinder, delay, or defraud any creditor of the debtor”.((RCW § 19.40.041(a)(1).)) Subsection (b) of the statute provides 11 nonexclusive factors for determining actual intent.

(1) The transfer or obligation was to an insider;

(2) The debtor retained possession or control of the property transferred after the transfer;

(3) The transfer or obligation was disclosed or concealed;

(4) Before the transfer was made or obligation was incurred, the debtor had been sued or threatened with suit;

(5) The transfer was of substantially all the debtor’s assets;

(6) The debtor absconded;

(7) The debtor removed or concealed assets;

(8) The value of the consideration received by the debtor was reasonably equivalent to the value of the asset transferred or the amount of the obligation incurred;

(9) The debtor was insolvent or became insolvent shortly after the transfer was made or the obligation was incurred;

(10) The transfer occurred shortly before or shortly after a substantial debt was incurred; and

(11) The debtor transferred the essential assets of the business to a lienor who transferred the assets to an insider of the debtor.

RCW 26.16.210 requires spouses to prove good faith in the transfer if a plaintiff questions their motive. “In every case, where any question arises as to the good faith of any transaction between spouses or between domestic partners, whether a transaction between them directly or by intervention of third person or persons, the burden of proof shall be upon the party asserting the good faith.” ((RCW § 26.16.210; Clayton v. Wilson, 168 Wash.2d 57, 227 P.3d 278 (2010).)) See Fraudulent Transfer in Washington


Conversion is the willful interference with a chattel without lawful justification, whereby a person entitled to possession of the chattel is deprived of the possession of it.((Davenport v. Washington Educ. Ass’n, 147 Wash. App. 704, 197 P.3d 686, 239 Ed. Law Rep. 715 (Div. 2 2008), review granted, 166 Wash. 2d 1005, 208 P.3d 1124 (2009) (plaintiffs failed to state a cause of action for conversion of union dues where they had no property interest in the money); Consulting Overseas Management, Ltd. v. Shtikel, 105 Wash. App. 80, 18 P.3d 1144 (2001) (trial court erroneously found that corporate officers had committed conversion by applying loan proceeds); Washington State Bank v. Medalia HealthCare L.L.C., 96 Wash. App. 547, 984 P.2d 1041 (1999) (trial court properly granted summary judgment to bank on conversion action against purchaser of collateral).)) In order to state a cause of action for conversion, one must have a possessory or other “property interest” in the chattel in question. Thus, where teachers sought recovery of amounts paid in union dues that were spent by the union in violation of the statute, they failed to state a cause of action because of the lack of a possessory or property interest in the funds.((In re Marriage of Langham and Kolde, 153 Wash. 2d 553, 106 P.3d 212 (2005) (husband’s claim of good faith was irrelevant); Paris American Corp. v. McCausland, 52 Wash. App. 434, 759 P.2d 1210 (1988); Olin v. Goehler, 39 Wash. App. 688, 694 P.2d 1129 (1985); Judkins v. Sadler-MacNeil, 61 Wash. 2d 1, 376 P.2d 837 (1962).)) Wrongful intent is not a necessary element of conversion, and good faith cannot be shown as a defense to conversion.((Restatement (Second) of Torts § 223, Comment b. )) One who takes a chattel from its owner without right but under a mistaken belief it is his own is still guilty of conversion.((Senn v. Northwest Underwriters, Inc., 74 Wash. App. 408, 875 P.2d 637 (1994).)) The intent required is simply the intent to exercise dominion over the plaintiffs’ property. The director or officer of a company may also be held personally liable for failing to discover another director’s conversion of funds. Directors and officers have an affirmative duty to be aware of the company’s affairs.((Restatement (Second) of Torts § 222A.)) Conversion can occur in a number of ways. These include wrongfully detaining chattels by refusing to return them to the rightful owner; destroying or altering chattel; wrongfully taking a chattel from another, (e.g. theft); wrongfully transferring another’s chattel to someone; and misusing a chattel. The Restatement offers six factors to be considered in determining the seriousness of a defendant’s alleged control or dominion: (1) the extent and duration of the actor’s exercise of dominion or control; (2) the defendant’s intent to assert a right-in-fact inconsistent with the plaintiff’s right-of-control; (3) the defendant’s good-faith; (4) the extent and duration of the resulting interference; (5) the harm done to the chattel; and (6) the inconvenience and expense caused to the plaintiff.

Federal Anti-kickback Statutes

There are at least three federal anti-kickback statutes the anti-fraud community should be familiar with. A fourth is the Stark Law (anti-physician self-referral). Federal Anti-kickback Statutes The earliest of the three is the Copeland “Anti-kickback” Act (Pub.L. 73–324, 48 Stat. 948, enacted June 13, 1934, codified at 18 U.S.C. § 874) which supplements the Davis–Bacon Act of 1931. Congress discovered that employers during the Depression were scheming to get around the prevailing wage provisions on federal contracts by requiring wage “kickbacks” from employees. The Copeland Act prohibits a federal building contractor or subcontractor from inducing an employee into giving up any part of the compensation that he or she is entitled to under the terms of his or her employment contract. The second anti-kickback statute was enacted as part of the Social Security Amendments of 1972 to make efforts to prosecute Medicare and Medicaid fraud easier. The statute was broadly construed in United States v. Greber (3rd cir., 1985).  Dr. Greber was convicted by a jury on 20 of 23 counts in an indictment charging violations of the mail fraud, Medicare fraud, and false statement statutes. His defense was that the payments were for professional services. The court held a jury could find him guilty if part of the reason for using the service was the payment. “If the payments were intended to induce the physician to use [the] services, the statute was violated, even if the payments were also intended to compensate for professional services”. The ruling prohibited business transactions that were once fairly innocuous, leading to the creation of safe harbors. (See e.g. 42 CFR 411.355). The safe harbors are now complex and detailed. The third federal statute...

Regulatory Compliance: It’s the Little Things…

Regulatory penalties can be devastating for a company, yet many companies, especially small companies, fail to plan for or devote resources to regulatory compliance. These companies can be confused and incredulous when they become the focus of investigations or sanctions and may delay responding until their very existence is at stake. Proper counsel can help companies understand regulators’ focus which helps them to prepare for and address compliance issues in a timely manner.

Fair Chance – Washington

 Ban-the Box Legislation Fair Chance – Washington h-3695.1-fair-chance-act New legislation beginning to emerge around the country may initially seem counter-intuitive to CFEs. The new laws prohibits employers from asking an applicant about his/her criminal history on a job application or during initial screening and delays that inquiry until after an applicant is determined to be otherwise qualified for the job. There is something in us CFEs that wants to know all but it is becoming clear that many of those caught up in the criminal system have little chance of becoming contributing citizens once they are  branded as a criminal. On November 3, 2015, President Obama signed a ban-the-box (aka “Fair Chance”) executive order addressed to federal agencies (referring to the box to check on an employment application affirming a criminal conviction). According to the National Employment Law Project there are more than 100 cities and counties around the country that have adopted ban-the box rules. Effective October 27, 2015, the New York City Human Right Law was amended by The Fair Chance Act.1N.Y.C. Administrative Code §8-107(11-a) . Guidance which promises vigorous enforcement was published. 2 In December of 2015, Portland, Oregon adopted a Fair Chance Law. Under their version of the law, employers are prohibited from inquiring about or even accessing an applicant’s criminal history from any other source before making a “conditional offer of employment.” This is defined as being any offer that is conditioned solely on the results of the criminal background inquiry or some other contingency that is expressly communicated to the applicant at the time of the offer. There currently is a Ban-the-Box bill...

WA Consumer Protection Law applies extraterritorially

Under the CPA an out-of-state plaintiff may bring a claim.against a Washington corporate defendant for allegedly deceptive acts. Similarly, an out:of-state plaintiff may bring a CPA claim against an out-of-state defendant for the allegedly deceptive acts of its in-state agent.

Collapse of building for insurance purposes

QUEEN ANNE PARK HOMEOWNERS  ASSOCIATION, a Washington non-profit corporation,  v.   STATE FARM FIRE AND CASUALTY  COMPANY, a foreign insurance company, June 18 2015 Copy of Case 2015-Queen-Anne-Park-v-State-Farm The Washington Supreme Court held that collapse means substantial impairment of structural integrity. The dissent argued collapse means “collapse”. Part or all of the building fell down. The Ninth Circuit Court of Appeals asked the court to decide this question: What does “collapse” mean under Washington law in an insurance policy that insures “accidental direct physical loss involving collapse,” subject to the policy’s terms, conditions, exclusions, and other provisions, but does not define “collapse,” except to state that “collapse does not include settling, cracking, shrinking, bulging or expansion?” The insured building was found to have “hidden decay” that  had substantially impaired the walls’ ability to resist lateral loads according to the owner’s inspector. Hidden decay that caused a collapse was expressly covered by the policy. “Construction of an insurance policy is a question of law for the courts, the policy is construed as a whole, and the policy ‘should be given a fair, reasonable, and sensible construction as would be given to the contract by the average person purchasing insurance.”‘1Queen City Farms, Inc. v. Cent. Nat’l Ins. Co. of Omaha, 126 Wn.2d 50, 65, 882 P.2d 703 (1994) (internal quotation marks omitted) (quoting Grange Ins. Co. v. Brosseau, 113 Wn.2d 91, 95,776 P.2d 123 (1989) ). The court held that “collapse” is ambiguous because it is subject to more than one reasonable interpretation. In this case there were two conflicting rules of interpretation: 1) plain meaning versus 2) favor the insured if...

Waiver Under Washington’s Deed of Trust Act Permitted Where Technical Violations Did Not Harm Plaintiff

Merry v Nationstar –Wn App 324745-III   Background to Deed of Trust In 2007, Sharon Weirich borrowed $205,440 from Countrywide Home Loans, Inc. and executed a Deed of Trust on her real property as security. The deed identified Countrywide as the lender, Landsafe Title of Washington as the Trustee, and the Mortgage Electronic Registration Systems, Inc. (MERS) as “a separate corporation that is acting solely as a nominee for Lender and Lender’s successors and assigns.” In Bain v. Metropolitan Mortgage Group, 175 Wn.2d 83, 93, 285 P.3d 34 (2012), the Supreme Court of Washington held that the MERS registry’s business practices in creating and transferring beneficial interests with regard to mortgages conflict with the requirements of Washington’s Deed of Trust Act. Beginning in 2011 MERS made a number of assignments and changes in ownership of the note, beneficiary, and trustee using the business practices found to conflict with the Deed of Trust Act.  Following these changes, in October 2012, Northwest Trustee Services, Inc. served Mrs. Weirich with a notice of default on behalf of Bank of America. The same month Ms. Weirich executed a deed of trust to Thomas Merry. This deed of trust secured payment of a $68,000 promissory note. Ms. Weirich also executed a power of attorney and an assignment of legal claims to Mr. Merry. In December 2012, Ms. Weirich received a notice of trustee’s sale informing her that her property would be sold on April 19, 2013 to satisfy her promissory note she originally gave to Countrywide. However, property was not sold on April 19, 2013 and no sale was rescheduled within the 120-day window...

State Supreme Court Finds Washington’s Anti-SLAPP Statute Violates Right to Jury Trial

On May 28, 2015, in Davis v Cox, the Washington State Supreme Court invalidated the Washington Anti-SLAPP statute, RCW 4.24.525. In a unanimous decision, the Court found that section (4)(b) of statute unconstitutionally violates the right to a jury trial. The Court further held that, because every other section in RCW 4.24.525 is dependent upon section (4)(b), the provision is nonseverable and the statute is invalid as a whole. The Washington Anti-SLAPP statute was adopted to address and dissuade “lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances”. A defendant may file a special motion to strike any “action involving public participation and petition”. If the action is found to involve “public participation and petition”, the responding party must “establish by clear and convincing evidence a probability of prevailing on the claim”. If the moving party prevails, the statute contains a provision for a mandatory $10,000 civil penalty and attorney fees for instituting a lawsuit in violation of the statute. The focus of the Court’s decision was the standard of proof placed upon the party responding to a special motion to strike. The responding party must “establish by clear and convincing evidence a probability of prevailing on the claim”. The Court held that the statutory language requires a trial judge to make factual findings and adjudicate the claim. Article I, Section 21 of the Washington State Constitution states, “The right of trial by jury shall remain inviolate”. The Court noted that, “At its core, the right of trial by jury guarantees litigants the right to...

Liability for Opinions – Omnicare

Putting Omnicare v Laborers District Counsel in Historical Perspective Omnicare, Inc., et al. v. Laborers District Council Construction Industry Pension Fund et al. Argued November 3, 2014—Decided March 24, 2015 Copy of Decision: 1503-Omnicare Overview The author is a Certified Fraud Examiner and is critical of the common law involving fraud and deceit. Too often the common law allows the taking of money from victims through hyper-technical defenses and faulty logic. Most of this comes from the lack of sympathy the judges have shown for the fraud victim through the history of the development of the law of misrepresentation. One example is the liability for opinions expressed in contrast to facts expressed. The general common law allows the person who takes money through a false expression of opinion to keep the money if speaker believed her opinion. Omnicare, in the context of a registration statement, moves the law in a positive direction by creating liability for a factual omission imbedded in the opinion that would be necessary to correct a false impression. Even though the Supreme Court did not delve in the history of the law, the 2015 Omnicare decision moved the court in a positive direction. The law on opinion testimony as fraudulent may be traced to the 1889 House of Lords decision of Derry v. Peek.1Derry v. Peek, (1889) L.R. 14 App. Cas. 337 (House of Lords) which limited liability for misrepresentation to fact patterns involving scienter. Derry excluded from the definition of “scienter” misrepresentation made with an honest belief that the fact represented was true. Although Derry was seemingly accepted be most United States courts and was adopted by the...

Fraud on the Market

Although the Oregon securities law statute does not on its face require proof of scienter (intent to manipulate, deceive or defraud), the Oregon Court of Appeals read the requirement into the statute if the theory for relief is fraud on the market. Copy of the decision: 150211-Oregon-v-Marsh-&-McLennan In 2003 the legislature amended the Oregon securities law to provide a good faith defense from securities law violations for secondary violators (one who materially aids or is a control person) and to eliminate the defense for sellers and all those in a fraud on the market case. The court reasoned the legislature did not provide a good a good faith defense for those who material aid (or control the issuer) in a fraud on the market case because it assumed that federal securities law applied. That meant the participants are liable because of their culpable intent to defraud and a good faith defense would not make sense. Even though ORS 59.137 does not require scienter by its terms, that is what it means. In a fraud on the market case, Oregon law is the same as federal law under SEC Rule 10b-5. Whatever one thinks of the Oregon Court of Appeals “correcting” the words of the statute, there is a troubling use of language in the case. The court distinguishes fraud on the market from “direct, face-to-face securities transactions”. This is not a valid description of the distinction. Either type of securities transaction can occur in face-to-face situations. Telephones have been available in Oregon for over 100 years and private issuer transactions are often sold over the phone without any face-to-face meeting.  One of the...

Business Liability for Foreseeable Harm

McKown v Simon Property Group, Supreme Court of Washington, March 5, 2015 Decision:  050405-McKnown-v-Simon-Properties After 40 years of practicing U.S. law, I have grown to appreciate the gift we received from our colonizing parent, the common law. The civil law systems suffer from the same rigidity that all statutes impose: one size fits all. The legislature drafts a statute as a solution to a perceived problem not understanding how it might be unjust in a different fact situation. The common law can smooth out these injustices by providing court-made law which reacts to the facts and needs of justice in a particular case. The negatives of the common law system that has decisions made by juries include unpredictability and indefensible awards. The common law has invented tools to minimize the negatives. One of those tools is “foreseeability”. It allows a court to claim that no one could have foreseen the harm so the defendant is not liable. Foreseeability is often the only legal barrier protecting a business from liability. Unfortunately it has proven to be a two-edged sword. The limits of foreseeably was highlighted in McKown v Simon Property Group. On Sunday, November 20, 2005, Dominick S. Maldonado walked into the Tacoma Mall and opened fire on shoppers and mall employees, injuring seven people. Maldonado wore a dark trench coat concealing a MAK-90 rifle and an Intratec Tec-9 pistol, and carried a guitar case filled with ammunition. McKown, an employee at one of the retail stores, tried to stop Maldonado, but was shot and wounded. Simon Property Group owned the Tacoma Mall. Under Washington Law, the Tacoma Mall is liable to McKown...