Commercial Litigation and Arbitration

Do Rule 9(b)’s Heightened Pleading Requirements Apply to Negligent Misrepresentation Claims? — Three-Way Circuit Split

Lakeshore Eng’ring v. Richmond Utilities Board, 2014 U.S. Dist. LEXIS 34223 (E.D. Ky. Mar. 17, 2014):

HDR is correct in concluding that Rule 9(b) applies to state-law negligent-misrepresentation claims brought under Kentucky law. In Republic Bank, the plaintiff brought claims of both fraud and negligent misrepresentation. Although Rule 9(b)'s "heightened standard unquestionably applies to [the plaintiff's] fraud-and-deceit" claim, the court in Republic Bank noted that "[i]t is less clear whether Rule 9(b) also applies to [the plaintiff's] common-law negligent-misrepresentation claim." Id. at 247. This lack of clarity arises, according to the court in Republic Bank, because of a complex split among the federal courts of appeals on the issue. See id. (comparing cases). See also Kimball Dean Parker, Comment, A Historical Approach to Negligent Misrepresentation and Federal Rule of Civil Procedure 9(b), 80 U. CHI. L. REV. 1461, 1474-1480 (2013) (describing a three-way circuit split regarding the federal pleading requirements for negligent-misrepresentation claims).

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