Consumer Fraud Criminal Liability

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With consumer fraud on the rise, federal and local law enforcement agencies crack down increasingly on individuals and groups suspected of this crime. But what is consumer fraud to begin with? Generally, there is no universal definition of consumer fraud, which is usually prosecuted under federal mail or wire fraud statutes. The reason prosecutors love to use these statutes in fraud cases is because both apply to ''scheme to defraud''. Obviously there is an unlimited number of ways to defraud others, which will guarantee that criminal defense lawyers handling fraud and white collar crime cases will never be hungry.

Actually, the law is quite liberal to the requirements of proving a fraudulent scheme. The government doesn't have to show that defendant actually swindled or tricked anyone, only that he devised the plan with the capacity to defraud.

The mail fraud statute is a power tool in the arsenal of federal prosecutors because it makes it a crime to commit fraud by using mails and it's hard to envision any sort of business activity without using mail. So, in an average scenario, if a person is engaged in fraud and uses mail to promote the plan, the activity is controlled by the mail fraud statute, even where the mailing is done within one state. Moreover, you don't even have to physically mail anything so long you cause someone else to use mail to promote your fraudulent scheme. One example: you defraud Mr. X to buy something from you and Mr. X mails you payment.

Another power tool is the wire fraud statute that makes it a crime to wire information in furtherance of the scheme be an interstate or foreign communication. In a similar fashion, you don't have to personally wire anything so long the wire communication is from the victim of the fraud, or even a third party, and it is done in furtherance of the fraudulent scheme. In the past, the wire fraud statute was used against businesses engaged in a ''boiler room'' operation to solicit customers by phone from across the country as well as in cases involving false advertisement on radio and TV.

This said, mailing or interstate or foreign wire communication is not criminal unless it has some nexus to the scheme, and is either ''incident to an essential part of that scheme'' or in some way furthers the scheme.

A good question is when consumer fraud will become of interest to federal prosecutors. In most cases, where schemes involve only a few isolated incidents and losses to the victims are relatively minor, cases will end up state criminal courts. Other cases, where defendants acted on a larger scale against general public of numerous victims and where damages are substantial, will likely be investigated and prosecuted by federal authorities.

Corporations are often targets of consumer fraud investigations. A corporation is not a physical entity and it acts through its officers, employees, and agents and it may be responsible for their criminal acts if such acts are done within the scope of employment and with intent to benefit the corporation or further the corporate business. Does participation by a corporation in a scheme to defraud automatically make its officers criminally liable? No, however, to establish such liability, prosecutors will have to show that corporate officers consciously promoted the scheme.

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