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Fighting Back Against Fraud

The life of the actor is filled with innuendo, shading, misrepresentation, mischaracterization, and flat-out lies. Alas, this is not always a good thing. On stage, manipulation and deception may be interesting and funny; offstage, these qualities may be tantamount to fraud. Herewith, then, a primer on the ways of fraud, so that actors and theatre people do not fall prey to, say, slick-talking and fast-walking operators willing to offer them parts in plays if only they reveal certain body parts first.

The major fraud statute in New York is General Business Law Section 349 and 350, and it is a lovely thing for victims of the unscrupulous. The statute, which is not necessarily representative of fraud statutes in other jurisdictions, does not require the plaintiff to prove intent in any onerous way. Certainly, the plaintiff does not have to show that the defendant's mindset was intentionally to "rip them off." Rather, the statute only requires the victim to show that the practice was deceptive or misleading in a material way, and that the plaintiff was injured. Not only is no "smoking gun" needed with this statute; the defendant can be held liable for a practice even if the defendant did not really mean for a practice to be deceptive.

To be even more specific, the standard for determining whether the practice is deceptive is the extent to which the public—including the unwary or unthinking public—can be fooled by the misleading representations. Foolish consumers can be protected by this statute, and the familiar legal phrase caveat emptor ("let the buyer beware") has not historically applied in New York, even though a recent New York Court of Appeals case did indicate that misleading and deceptive acts should be likely to mislead a reasonable consumer acting reasonably under the circumstances.

The reach of this statute is vast. All sorts of subject matters are within its reach: the procurement of life insurance, in vitro fertilization, real estate sales, wedding singer deals, furniture sales, au pair services, apartment rentals, Internet marketing. You get the idea. For sure, bogus claims that actors will "be stars" if they decide to pose is actionable under this statute, as are sundry other claims involving training schools, modeling, and even unseemly practices by theatre operators.

What if the potential defendant has not written any of the alleged misrepresentation down, or if the potential defendant has not said anything that is explicitly inaccurate, but the impression is one that is meant to fool by omitting important facts? It might be a bit harder to prove these kinds of claims, but the claims are certainly actionable. Certainly, the court will not expect that a liar will write down his or her lies to help the plaintiff in proving his or her case. Of course, at trial, the case will come down to you against the crook, but who is a judge or jury to believe in this kind of situation: a noble actor, giving of his soul for the world of art, presumably with a knack for verbalizing and appearing sympathetic, or a sleazy pseudo-merchant, intent on profit and materiality, who also, presumably, has a knack for verbalizing and appearing sympathetic?

What if you're afraid of appearing in court, even if you're an actor? For sure, court is not as scary as it might seem to a layperson. Usually, the judge is a fairly average person, sometimes smart, sometimes not, sometimes well dressed, sometimes not, sometimes knowledgeable, sometimes not. A good actor should be able to wow judges pretty easily. Of course, it may be that the defrauder is also able, in which case witnesses are a fabulous way to deal with the matter. Because no matter how convincing a salesperson may be, no matter how credible and smart, in the face of two credible witnesses saying the same thing, a case will likely appear unctuous and crumble. Numbers will often control the pace and strategies in litigations like this. After all, the court will have a lot of trouble believing that two different individuals—including one who may have no financial interest in the case—would possibly go through the exhaustive effort of court for no reason.

How to find these additional witnesses? It's not easy, for sure, though an advertisement in a publication might work to an extent. The best way to do so, obviously, is to retain a lawyer, who may be able to "depose," or ask "interrogatories," or ask for "discovery requests" of the defendant. For instance, in a case involving deceptive practices of a used car dealer, a very conscientious lawyer could simply get a copy of all the documents for used cars sold in the past year. The lawyer could then call each and every person mentioned in the documents and ask them whether the defendant subjected them to fraud. It's a lot of work, but it's amazing how thoroughness seems to work in the law. It's also true that unscrupulous merchants tend to be serial in their behavior. It's also true that it's eminently gratifying to expose a systematic ring of fraud that is ripping off hundreds of people, including, perhaps, brethren theatre people.

Will a lawyer be happy to represent you in this sort of case? Hard though it may be to believe, he might be. The courts are apt to award attorney's fees to a prevailing plaintiff in such cases. Lawyers appreciate attorney's fees, which are paid by the defendant to the lawyer. There is also, of course, the New York State Attorney General's Office, which may be of help in prosecuting claims (they are located at 120 Broadway in Manhattan). There is also the New York City Department of Consumer Affairs (66 John St.), which may be of particular help if the defendant requires licensure from the department to operate. There is the Better Business Bureau (257 Park Avenue South), which will help in certain circumstances. And, finally, if there is no other choice, you can always go to small claims court and prosecute the action yourself.

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