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A Case Called Karma

2/28/2020

                                                          A Case Called Karma

As Congress scrambled to hide a whistle-blower, two government whistle blowers, maybe, already dead; executed, assassinated, murdered, eliminated, or suicide?

To Whom It May Concern, of course this is written in my opinion. Page 1 of 22.

On November 16/17, 2019 President Trump visited the Walter Reed’s Veterans Hospital about a heart problem but said he was in good health and had no problems with his heart, not being omitted very long, if I recalled correctly.

https://www.cnn.com/2019/11/17/politics/trump-physical-walter-reed-protocol-routine-presidential-visit/index.html

https://www.theguardian.com/us-news/2019/nov/19/trump-denies-reports-sudden-hospital-visit-followed-heart-attack

https://abcnews.go.com/Politics/trump-denies-heart-attack-praises-gorgeous-chest-florida/story?id=67347844

I believe in signs and karma even when others do not recognize them. My take was the President was sending a signal as he often does over the last four years.  I have never met the man.

Coincidental karma can be a good sign or maybe not, this was one of the dates, November 16/17, 2018, one year prior, and the second of my visits, November 16/17, two years’ prior that Doctor Asistores had her first appointment with me. As I looked back, she was put in place too frame me and corrupt my medical records.

Karma (car-ma) is a word meaning the result of a person's actions as well as the actions themselves. It is a term about the cycle of cause and effect. According to the theory of Karma, what happens to a person, happens because they caused it with their actions. https://simple.wikipedia.org/wiki/Karma

Talking about coincidence, my imagination, and karma, but something else happened around November 16/17, 2019, after overwhelming evidence against Doctor Asistores, she was removed as my Doctor, and another frame was put in place from UMC having to do with them trying to frame me for having a heart attack, that I discuss later, that I never had, that is well documented that I said I did not have. The Doctors faked a heart attack with false statements from UMC to try to disprove, which they knew they could because I did not have a heart-attack, and actual heart attack that I had in 2009 from lifting boxes. Doctor Khan and her residents tried to frame me again. Good Karma that Doctor Asistores was maybe fired or maybe just transferred or Bad Karma, maybe still there but under Doctor Khan.

11/16/2018 James, Marcella D LPN foot concerns and need podiatry consult; discussed insulin concerns, Pain 6, Influenza Immunization. Tobacco Use Screening: The patient has never used tobacco.  Diabetic Foot Assessment/exam needed. Findings: pulses bounding, bilateral blisters and right great toe infection, open clean without drainage.

11/16/2018 Asistores, Nonette B Here for follow up of current medical condition. He complains of foot blisters from recent shoes and currently stopped wearing the shoes as advice by prosthetics. He is now wearing XL Darco wound care system shoes supplied by prosthetics. Physical examination: unable to tolerate insulin causing headache, refuse to restart insulin. Has gi side effect to metformin. Increase Glipizide to 15 mg, referrals to see pharmacy and endocrinology, foot blisters from shoes/was advised to stop wearing. Podiatry and PAVE follow-up. Foot blisters with no drainage, redness and sign of infection. Medication list was reviewed. This is a Service-Connected visit. Many Ratings were not on my past medical problems this time; I will request she update the ratings and apply them on my next visit.

            11/17/2017 Nonette B Asistores Has back pain and joint pain

I have never used any illegal drugs or illegal substances. This urine test has been showing up in my medical records for several years. I never gave permission for the test. I would request Doctors stop putting in an order for this test. It always has read negative; and is a negative in my medical records:

            A.        11/06/2017 Nonette B. Asistores Urine Negative Barbiturates

            B.        11/06/2017 Nonette B. Asistores Urine Negative Amphetamines

            C.        11/06/2017 Nonette B. Asistores Urine Negative Cocaine

            D.        11/06/2017 Nonette B. Asistores Urine Negative Benzodiazepine

            E.         11/06/2017 Nonette B. Asistores Urine Negative Cannabinoids

            F.         11/06/2017 Nonette B. Asistores Urine Negative Methadone

            G.        11/06/2017 Nonette B. Asistores Urine Negative Opiates

I have never meant the President. Maybe the President sees me as savable, maybe a pal, and maybe, then again, he sent me a single what these characters were up to. Or, maybe not. Then that would be good Karma. Like, I say. I have never spoke to the man. And maybe that man at the State of the Union was liken to me. Hey, I sat right there in the chamber. My imagination has started up again, as those drinking days with the boys in the military. Rod's rambling on like my rambling sentences. But, I never had a drug problem. I never smoked or used illegal drugs. What about that opioid form, narcotic, that I signed out of false pretense? Well, Doctor Shepard confused that sentence too look as if I may have smoked, setup one, then the confused that sentence that appeared that I had no complications with diabetes, setup two, then the third was he had me sign that addiction opioid form as required; but no Doctor thought I needed to sign it for 15 years or two years in the military with ankle sprains, neck injuries, 3 surgeries, gallstones, kidney stones, neuropathy, head injuries, neck injuries, hand injures, groin injuries, and the list goes on. Yes, when I saw Doctor Asistores more bluntly pursuing similar setups, I was already reducing tramadol, when Doctor Shepard and his nurse were appearing to encourage not to reduce, but that was about Service Connection pain that they were trying to portray as non-Service Connection acts of addictions instead of common folk pains. How many Service Members signed that form out of false pretense as required? I think I read somewhere once you signed that form it is turned over to the FBI for them to surveille Veterans. Maybe not. Yes, I quite cold turkey the Tramadol and went to Ibuprofen. Then Asistores made me stop taking this non addictive pain medicine, as per VA, to take Tylenol, some other pain medicine that VA seen as addictive. I refused the Tylenol as I did the tramadol with the stereo types and just used over the counter medicine with some non-addictive prescribed, non-recognized as addictive. See, chronic pain will never go away. But, then since I made that move, the Las Vegas VA made the Doctors at the ER, two specific, one this month, not write Tylenol prescribed in my medical records printable, but hidden on non-printable back sheets, to make it look like I was addicted to pain medicine, and had not received any from ER injury visits. I received this form from a printout of Sunrise Bill as the reason they put "0" pain also. Thanks out there. But, maybe that guy was not me at all. They made a movie about me about thirty years ago called they lived but they did not know my name yet, so they named the character, "nobody." I am nobody. You do not know me. Do you? I was the homeless white guy, well Doctor Shepard said I was white in his medical records; or maybe I was the black guy who could see through people with those glasses. I do not know who my today's side kick is. A side kick. You know in that Western movie, "My Name is Nobody" the fastest draw in the West. The East or West. They said, nobody saw God. They said nobody could speak to God. Well, let me get off rambling and get back to the serious stuff.

Now of course, I and the “framing persons” were probable the only ones who saw this visit from President Trump differently.

I had filed complaints of fraud with the Director of VA, and with Congress, and with the Veterans White House office thinking this would stop the continual attempts to defraud me out of my medical benefits. But, instead of decreasing, they intensified.

So, of course I thought maybe the President did not fire the Director of the VA that well knew what was going on, and it was not just with me, as I read more and more, I found article after article of the most corrupt VA that I could imagine in my 25 years.

Coincidental or maybe not, I waited to see was this singling that Doctor Asistores had been fired or just moved, so someone else could take over the corrupt act of framing Veterans by putting false statements in their medical records. After the corruption continued, I thought maybe it was a single for them to continue and keep up the good work, but I heard in the State of the Union address he had fired, I think 8,000 VA People. Maybe there was hope.

Well, a week or so later, I received a decision from the VA that I was Service Connected. But, it said for an injured pinky finger. I had not filed my nexus statement for all of my possible service connection for all my present and past injuries, diseases, symptoms, and other, over the past years, which I think could be for 90 different categories or so, that I did file in a Supplemental Claim about 60 days later.

I guess I was Service Connected as another scheme was set up to commence around 2/27/2020 from several parties. The VA Claim center set me up with appointment to be reviewed by compensation doctors which I thought them and the Social Security Office were trying to get enough fabricated false evidence to take to a grand jury to maybe get by issuing an arrest warrant for my arrest from Social Security; showing no due diligence many times to contact me from my many communications of work; of borrowing money; attending College; the Government being the consequent and proximate cause of my financial conditions, injury, and now maybe a push for a temporary in custody Death Warrant, when they are the consequent and proximate cause of any injury they may allege. Of course, they may call it suicide.

I told them, VA Intake, WI, back in the summer that I would not attend any of their Doctors after so many attempts to frame me with false statements in my medical records; that meant also not going to the 3 compensation Doctors. My first writings said I applied for Service Connection to get to the bottom or top of who was trying to frame me for at least 3 years, 2017 through 2020, and corrupt my medical records for later disabilities maybe “Service Connected” for about 6 years, 2014 through 2020. The compensation was not important as it would probably be low; not much more than my Social Security Disabled Worker Check at this time in my life, but yes I still work self-employment. I also knew if I attended the compensation those privies in law would say I was trying to get money from a pinky injury, maybe I did not deserve or they were not willing to do an honest evaluation with so much corruption uncovered. In my opinion, The Frame centered February 27, 2020, this date as a date to disperse Social Security to the banks, and an extension from date requested from the Director of Records Department request to amending some thirty complaints I filed for amendment which she sent out February 25, 2020, maybe not to be false statement changes received by Social Security by this February 27, 2020 date, but received after they stopped my payment. The compensation Doctors would wrap up their evaluations probable by February 27, 2020. But, in my opinion the scheme fails apart. But, this is just my analysis. My opinion.

After looking at the preponderance amount of evidence, several of the persons removed things; 1 gay racial slur by Asistores, but I am not gay, and on to her lie about a conversation that I smoked, 4 racial black slurs removed, 2 other lies that I said I smoked removed, 2 lies about my mother had diabetes removed, 1 lie about I had a brother with hypertension/high blood removed, 1 lie that I ambulated/rode a scooter in an appointment removed, about a third of what I had requested received in response removed. The Director put no names on the letters of denials to amend as to make them not hold up in Veterans Appeals Court Washington D.C. or not meet the standards appealed to a further VA Office; seemingly wanting them appealed to VA Counsel Office off to another state. Nor did it leave a provable paper trail if the person even said that, some spoken in third person hearsay, she attached no initial request of mine to what she and others signed in her name so that they could not answer some of the questions correctly. For example, Doctor Khaldy was said to said, third person of course, that she gave the right figures measuring my legs girth, which she did, but that was not the question asked to be amended. The amendment requested she switch the girths to the right legs, she put the girths backwards in her initial measurements. Another, a nurse that I saw twice, and never gave a filament test, wrote normal, said I may have said I had feeling, of course the medical records have a preponderance of medical evidence that I did not say that, as the way the rating scale works for the filament test was incorrect, and the other nurse on the filament test that I saw three times and never gave the test, said “normal” which medical records have another nurse on same day saying “abnormal” as the way the rating scale works, but she has been non-responsive and the director said in each case she thoroughly reviewed the medical records. The two most egregious Primary Care Doctors, Shepard and Asistores long statement about I had a conversation telling her about my smoking, were non-responsive seemingly. So, some Doctors and the Director of Records were still being deceptive in making important corrections. Maybe, a third denied. Others amendments from the Director of the VA, maybe another third, she, the Director of Records or her CEO that signed for her in many cases, did not respond yet, nor did UMC respond to the 30 amendment requested, intentionally and recklessly misrepresenting material facts refusing to make such corrections after 60 days or so, nor did Sunrise Hospital respond to the request for amended changes to the medical records, intentionally and recklessly misrepresenting material facts refusing to make such corrections after 60 days or so. In my opinion, and around this date, February 27, 2020, I cancelled my transfer appointment to a Doctor Garcia and his Nurse's 30-minute evaluation Southwest Clinic. In my opinion working with Doctor Khan, maybe last November, he had taken the catalyst point man at the VA for now attempting to frame me. As his name was tied into UMC medical records, overwhelming action of fraudulent and deceptively placing untrue statements in my medical records and malicious intent not to change one of some thirty when alerted; many very obvious within 60 days so not one change sent to Social Security of their misconduct, surely they were trying to slip the lies, maybe, past a grand jury long enough to issue an arrest warrant, a death warrant for whistle blowers of the government seemingly. But, the events were foiled, the grand jury delayed, the check mailed, and the arrest warrant rescinded missing many elements of common law fraud, if there was ever any. They will try again.

Document 524 Doctor Asistores, my first appointment writes she and I had this conversation that I, a life time non-smoker has been smoking for two weeks, two weeks is since the last time noted in my medical records that I never smoked:

Colorectal cancer screen.

Tobacco use Screening: (*************NOTE: I AM A LIFETIME NONSMOKER).

“Patient had tobacco use screening at this encounter and within the past 12 months, patient states "I am a current tobacco user." The patient was counseled on risks of tobacco use and benefits of discontinuing. Advised to stop using tobacco products. Offered and discussed mediation options available. Offered tobacco cessation classes, to assist the patient in quitting. Patient was given brief counseling to; 1. Set a quit date within 2 weeks. 2. Get support from family, friends, and co-workers. 3. Review past quit attempts - what helped, what lead to relapse. 4. Anticipate challenges to quitting, particularly in the first two weeks. 5. Identify reasons and benefits of quitting. Level of understanding: Fair” When forced to change, she follows up this statement with another statement on me smoking with a racial-gay slur calling me her. She seemed angry at having to retract all of that. Doctor Asistores finally wrote a statement that I had never smoked, but I appealed that this statement of smoking was left in the medical record also causing inconsistency in the medical records.

After looking at the preponderance amount of evidence, the Las Vegas VA did pay a 7,000 bill from Sunrise, and large bill from Radiology from 2019, another has been appealed to the appeals court, and UMC total bill of Doctor, Hospital Care, Radiology all have been gathered for review by the Las Vegas VA, as they showed me they had, but UMC won’t amend any of their 30+ deceptive statements in my medical records holding up payment; being the proximate cause of their own lost.

Then there is bad Karma for Whistleblowers, even the vilest deserve a trial before execution:

https://www.businessinsider.com/jeffrey-epstein-kill-himself-poll-2019-11 “"Jeffrey Epstein didn't kill himself" has become a meme, bolstered by his connections to powerful people — including Bill Gates, Prince Andrew, Bill and Hillary Clinton, and President Donald Trump — and the suspicion that he had compromising information about them. In October, Michael Baden, a celebrity forensic pathologist hired by Epstein's brother, said on Fox News that it was possible he was strangled. And GOP Rep. Paul Ghosar has pushed the meme on his Twitter account, as did a former Navy SEAL on Fox News.”

Epstein was arrested again on July 6, 2019, on federal charges for the sex trafficking of minors in Florida and New York.[10][11] He died in his jail cell on August 10, 2019.[12] The medical examiner ruled the death a suicide,[13] although Epstein's lawyers have disputed the ruling.[14][15] Because his death eliminates the possibility of pursuing criminal charges, a judge dismissed all criminal charges on August 29, 2019.[16][17] https://en.wikipedia.org/wiki/Jeffrey_Epstein

https://www.rollcall.com/2019/07/25/trump-administration-works-to-revive-federal-death-penalty/

https://www.theatlantic.com/ideas/archive/2019/07/barr-doesnt-see-whats-wrong-death-penalty/594925/

https://www.dw.com/en/us-supreme-court-blocks-trump-bid-to-resume-federal-executions/a-51566836

https://slate.com/news-and-politics/2019/09/trump-whistleblower-spy-treason-execution.html

https://www.newyorker.com/culture/q-and-a/can-president-trump-be-held-accountable-for-the-whistle-blower-complaint   Under the Intelligence Community Whistleblower Protection Act of 1998, intelligence officials can report an “urgent concern” to the Office of the Inspector General, who is in turn required to transmit “credible” concerns to the director of National Intelligence (D.N.I.). He or she, in turn, has seven days to “forward such transmittal to the intelligence committees, together with any comments the Director considers appropriate.” The goal is to insure that Congress learns of the complaint and can carry out appropriate oversight of the executive branch. 

Then there is sometime no Karma at all and tragic ending when blowing the Whistle on Las Vegas VA corruption as in 201l. One million dollars to his wife did not bring back Stanley Gibson but hid the corruption in the billions maybe for another 10 years:

Stanley Gibson, a disabled Gulf War veteran, was murdered in a Las Vegas parking lot last December 12. He was shot seven times in the back of the head, without provocation, by a stranger wielding an AR-15 rifle.

https://www.change.org/p/prosecute-the-police-officer-who-killed-army-veteran-stanley-gibson

https://www.dailykos.com/stories/2017/10/11/1048214/-Who-Killed-Stanley-Gibson-The-military-The-VA-The-Las-Vegas-police

https://nvcopblock.org/142997/jesus-arevalo-lvmpd-cop-murdered-stanley-gibson-in-jail/  “found guilty of harassing his ex-wife and her new boyfriend. Arevalo was seen and heard by numerous witnesses making death threats against Steve Delao, who is now married to Arevalo’s former wife Catherine, in public at a church.”

https://www.propublica.org/article/va-secretary-robert-wilkie-testimony-va-mission-act Wilkie was responding to lawmakers’ questions about an investigation published this week by ProPublica and PolitiFact into the Veterans Choice Program. The program, which began in 2014, was supposed to give veterans a way around long waits in the VA. But veterans using the Choice Program still had to wait longer than allowed by law. And according to ProPublica and PolitiFact’s analysis of VA data, the two companies hired to run the program took almost $2 billion in fees, or about 24 percent of the companies’ total program expenses.

Now, If I ever become the later, bad Karma, be sure to prosecute everyone in the conspiracy from the enablers, to the cover uppers, with my accidental death, forced suicide (because my religion would not allow suicide), shot seven times in the back, even if I should choke to death under protective custody from food or found swinging hung from my sheets, or ate that bad meal induced heart-attack, faking another heart-attack as Doctor’s can do, whatever false narrative to cover-up corruption at the Las Vegas Veterans Hospital, or those enabling the corruption.

I did have an accident about a couple weeks ago with knee, leg, ankle, neck and a nurse described as the beginning to the T-section of my back. I went to the emergency room to see one Doctor that I had seen before and after a lot of work, he said my right foot looked pretty good; I have to keep them bandaged, walk off and on with a crutch, and cut the sides out of my shoes to help them improved. He contacted Doctor Garcia that morning. About a week after that, my left foot swelling went down but cellulitis had spread, redness and warm, to the injuries on the left leg, my left leg had swollen back to the +3 leg edema with pitting when I pushed it with my hand, and the knee was very swollen. My other knee has not healed, and I walk with two crutches and a soft collar that brings relief to the neck. The Doctor said m neck is shot and I had lost most of the cushion where bone is just rubbing bone which is causing the crackling noise, muscle spasm, and twitching. I may have to wear the collar off and on over several months depending on how much pain I feel in the neck. He prescribed flexural for spasms, Tylenol, as I already take Tylenol over-the-counter when needed. I still will use table care and call-center to get my medications for the future, as they were not being written by Doctor Garcia. I never met with Doctor Garcia, he was never my Primary Care Doctor, never serving my best interest at the VA.

So, if you are out there Mr. President Trump, Congress, and Mr. Barr, I hope there is action taken, action in this matter, over these departments conspiring to defraud me out of earned benefits and I request that I continue to get my Social Security Check on time, fired-worker while disabled, unable to return to former occupation substantially nor sustainable as a 20-year history has recorded. It is a small amount, but earned amount through Service and time worked through a hard working career and continued work as self-employed or Adult College Student with a lot of bills to pay.

Whistleblowers such as me generally do not have criminal minds so they do not fall into that category described by criminals, one of their own. Most military that I know, by their oath of service, are not going to participate in corruption. But, not to say, many Court Martials do not happen. No, I am not an OG. Why do young black men call all old black men, OG? Old Gansta.

Almost anyone with evidence of fraud or misconduct can be a whistleblower. You do not have to be a current or former employee of the company that engaged in the fraud or misconduct. You do not need to have witnessed the fraud or misconduct yourself or have documentary evidence of the fraud or misconduct.

             https://constantinecannon.com/practice/whistleblower/faqs/

https://search.nation.com/serp?q=laws%20that%20protect%20whistleblowers&segment=nation.gd.007&s1aid=1931608052&s1cid=1589467392&s1agid=59720791373&s1kid=kwd-304390924483&utm_source=adwords&gclid=EAIaIQobChMI1ebE_fTE5wIVg6DsCh3UoADTEAMYAiAAEgLUD_D_BwE laws that protect whistleblowers search google

Most crimes require what attorneys refer to as "mens rea," which is Latin for a "guilty mind." In other words, what was the defendant's mental state and what did the defendant intend when the crime was committed. Mens rea allows the criminal justice system to differentiate between someone who did not mean to commit a crime and someone who intentionally set out to commit a crime." https://criminal.findlaw.com/criminal-law-basics/mens-rea-a-defendant-s-mental-state.html

https://www.westword.com/news/how-a-career-criminal-broke-the-convict-code-and-saved-himself-11089278

In the legal system, "Not Guilty" does not always equate to being innocent, exonerated; it means there was not enough evidence, era by fraud (witness lied, exculpatory evidence hidden, someone framed, or a host of other things that could prove a person “not guilty “and the prosecution failed to prove the elements of the crime alleged. Surely by a partisan vote, the President was not 100% exonerated, 100% acquitted, but maybe the law itself exonerated the President.

The house managers did their jobs as prosecutors. They presented the best case with what the evidence they had.

Not Guilty: Abuse of power Opinion: by the vote, some believe the President was guilty of shaking someone down which happened to be of someone of equal status, but this may have not been similar to manager abuse in the workplace. There was also a case, Joe Biden, from the prosecuting party, someone of equal status doing something similar and the precedent case was not charged the status of “High Crimes and Misdemeanor.” But, the second part was similar to Russia where a Foreign Government release information about possible corruption from a political candidate. Does it best serve the interest of the American people and is there any law on the books to support such. So, Judge Roberts if he had such powers may have had to overturn a Guilty Verdict.

Obstruction of Congress – Congress did not use due diligence and challenge the President’s legal standing of Executive Privilege to the level of the Supreme Court. If ordered by the Supreme Court to produce documents or witnesses and non-compliance, there may have been a Prima facie Case for a Guilty Verdict. So, Judge Roberts if he had such powers may have had to overturn a Guilty Verdict unless the later taken to the Supreme Court during Pre-trial.

The remaining two issues:

Witness Intimidation is a crime.

Criminal intent

Witness Intimidation is a Crime; Witness tampering is a criminal offense even if the attempt to tamper is unsuccessful. The offense also covers the intimidation of not only a witness himself or herself, but also intimidation of "another person” https://en.wikipedia.org/wiki/Witness_tampering

"In the United States, the federal crime of witness tampering is defined by statute at 18 U.S.C. § 1512, which is entitled "tampering with a witness, victim, or an informant."[2][3] The statute is broad; the Justice Manual notes that it "proscribes conduct intended to illegitimately affect the presentation of evidence in Federal proceedings or the communication of information to Federal law enforcement officers" and applies to tampering with witnesses in "proceedings before Congress, executive departments, and administrative agencies, and to civil and criminal judicial proceedings, including grand jury proceedings."[3] Witness tampering is a crime even if a proceeding is not actually pending,[3][2] and even if the testimony sought to be influenced, delayed, or prevented would not be admissible in evidence.[2] Section 1512 also provides that the federal government has extraterritorial jurisdiction to prosecute the offenses described by the section.[2][3] Witness tampering is a criminal offense even if the attempt to tamper is unsuccessful.[3] The offense also covers the intimidation of not only a witness himself or herself, but also intimidation of "another person" Section 1512 was created as part of the Victim and Witness Protection Act of 1982 (VWPA). Before that time, federal prosecutions "for attempting to or succeeding in corruptly influencing or intimidating witnesses" were prosecuted under the general obstruction of justice statute, 18 U.S.C. § 1503.[4]"

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BLOCK QUOTES are part of this writing.

And if that evidence Solicited is corruption, this should be thwarted special protection for disclosing such information for Americans which should be extended to Foreign Countries that Americans, Presidential Candidates, such protection, for disclosing that that Presidential Candidate, may be conducting in corruption, unethical business practices, shakedowns, or involved in corrupt Government practices at home, America, or Abroad. such protection, Privileges, which may be considered include:

"Opinion and Fair Comment Privileges

Opinion and Fair Comment Privileges. The right to speak guaranteed by the First Amendment to the U.S. Constitution includes the right to voice opinions, criticize others, and comment on matters of public interest. It also protects the use of hyperbole and extreme statements when it is clear these are rhetorical ploys."

"Opinion and Fair Comment Privileges

The right to speak guaranteed by the First Amendment to the U.S. Constitution includes the right to voice opinions, criticize others, and comment on matters of public interest. It also protects the use of hyperbole and extreme statements when it is clear these are rhetorical ploys. Accordingly, you can safely state your opinion that others are inept, stupid, jerks, failures, etc. even though these statements might hurt the subject's feelings or diminish their reputations. Such terms represent what is called "pure opinions" because they can't be proven true or false. As a result, they cannot form the basis for a defamation claim."

http://www.dmlp.org/legal-guide/opinion-and-fair-comment-privileges

"Fair Comment The defense of fair comment applies to comments on any matter of public interest. Historically, the defense required that the defendant show that:

  • the comment was on a matter of public interest
  • the comment was based on fact
  • the comment is recognizable as comment, as opposed to fact, and
  • the comment satisfies the objective test of whether it could be an honestly expressed opinion on the facts.

The Supreme Court decision largely revolves around this last factor and what it means. The court held that the person writing or speaking the defamatory words does not necessarily need to honestly believe the defamatory imputation, but rather it is enough for the defense to show that, objectively, someone could honestly have expressed the opinion in controversy on the proven facts."

https://www.lexology.com/library/detail.aspx?g=eeb0a85b-abe7-4077-b30b-a8eb306b08b9

"Conditional Privileges

Other privileges do not arise as a result of the person making the communication, but rather arise from the particular occasion during which the statement was made. These privileges are known as conditional, or qualified, privileges. A defendant is not entitled to a conditional privilege without proving that the defendant meets the conditions established for the privilege. Generally, in order for a privilege to apply, the defendant must believe that a statement is true and, depending on the jurisdiction, either have reasonable grounds for believing that the statement was true or not have acted recklessly in ascertaining the truth or falsity of the statement.

Conditional privileges apply to the following types of communications:

  • A statement that is made for the protection of the publisher's interest
  • A statement that is made for the protection of the interests of a third person
  • A statement that is made for the protection of common interest
  • A statement that is made to ensure the well-being of a family member
  • A statement that is made where the person making the communication believes that the public interest requires communication of the statement to a public officer or other official
  • A statement that is made by an inferior state officer who is not entitled to an absolute privilege"

https://injury.findlaw.com/torts-and-personal-injuries/defenses-to-libel-and-slander.html

"Re·port·er's privilege or jour·nal·ist's privilege
: a privilege protecting a reporter from compulsion to reveal information acquired in the course of gathering news called also journalist's privilege

2 : any of various fundamental or specially sacred rights considered as particularly guaranteed to all persons by a constitution and esp. by the privileges and immunities clause of the U.S. Constitution"

https://dictionary.findlaw.com/definition/privilege.html

"Informant's privilege
: the privilege of the government to withhold the identity of an informant who has provided evidence for a criminal trial called also informer's privilege

https://dictionary.findlaw.com/definition/privilege.html"

"Qualified privilege
: a privilege esp. in the law of defamation that may be defeated esp. by a showing of actual malice called also conditional privilege
b : an exemption from a requirement to disclose information (as for trial) that is granted because of a relationship or position that demands confidentiality [the attorney-client ] [the doctor-patient"

https://dictionary.findlaw.com/definition/privilege.html

"Executive privilege
: a privilege exempting the executive branch of government from disclosing communications if such disclosure would adversely affect the functions and decision-making process of that branch see also United States v. Nixon in the Important Cases section NOTE: Executive privilege is based on the separation of powers doctrine. In United States v. Nixon, the Supreme Court held that this privilege is not absolute and that without a claim of a need to protect military, diplomatic, or national security secrets, the need for evidence in a criminal trial will outweigh a general assertion of executive privilege.

  • deliberative process privilege : a privilege exempting the government from disclosure (as in discovery) of government agency materials containing opinions, recommendations, and other communications that are part of the decision-making process within the agency
  • absolute privilege : a privilege that exempts a person from liability esp. for defamation regardless of intent or motive ;specif : a privilege that exempts high public officials (as legislators) from liability for statements made while acting in their official capacity without regard to intent or malice"

https://dictionary.findlaw.com/definition/privilege.html

Understandable Quid pro quo may be used - a favor or advantage granted or expected in return for something. In a good sense: "the pardon was a quid pro quo for their help in releasing hostages"

"a favor for a favor". Phrases with similar meanings include: "give and take", "tit for tat", "you scratch my back, and I'll scratch yours", and "one hand washes the other". In common law, quid pro quo indicates that an item or a service has been traded in return for something of value, usually when the propriety or equity of the transaction is in question. A contract must involve consideration: that is, the exchange of something of value for something else of value."

https://en.wikipedia.org/wiki/Quid_pro_quo

But a Quid pro quo can also have a negative connotation such as harassment, shakedown, included bribery or extortion. Quid pro quo harassment typically involves an employee, subordinate, being pressured by a superior to provide favors in order to avoid being fired or demoted, or in order to get a promotion, raise or perk.

Alleged Block Quote from a Journalist Writer, The Last of the Whistleblowers, which is protected speech:

"Trump Committed Crimes in His Ukraine Shakedown” By Max Bergmann and Sam Berger Posted on January 21, 2020, 2:08 pm

"The House Judiciary Committee report makes clear that Trump “commit[ed] the crime of bribery.”

The report notes that “criminal bribery occurs when a public official (1) ‘demands [or] seeks’ (2) ‘anything of value personally,’ (3) ‘in return for being influenced in the performance of any official act.’ Additionally, the public official must carry out these actions (4) ‘corruptly.’”

Trump solicited a bribe from Ukraine. He sought something of personal value (the announcement of investigations into his political opponents) in exchange for an official act (a White House meeting and the provision of military assistance), and he did so corruptly."

They also alleged:

            "committed the crime of honest services fraud

The House Judiciary Committee report makes clear that Trump “knowingly and willfully orchestrated a scheme to defraud the American people of his honest services as President of the United States.”

The report notes “[t]hat offense is codified in the federal criminal code … for public officials who (by mail or wire fraud) breach the public trust by participating in a bribery scheme.”

The report goes on to state that “[t]he underlying wire fraud statute, upon which the ‘honest services’ crime is based, requires a transmission by ‘wire, radio, or television communication in interstate or foreign commerce any writings . . . for the purpose of executing [a] . . . scheme or artifice.’”

Trump participated in a bribery scheme and utilized foreign wire communications to do so, such as by pressuring Ukrainian President Volodymyr Zelensky on their July 25 phone call."

Because of the significant evidence that Trump involved others in his efforts to commit bribery and wire fraud, he also likely was engaged in a criminal conspiracy.

As Randall Eliason, a professor of criminal law at George Washington University, has said, “A criminal conspiracy is two or more people agreeing to commit the crime, along with at least one of them taking at least one act in furtherance of the conspiracy.”

"A former member of Trump’s legal team, Lev Parnas, alleges that after Rudy Giuliani and Trump discussed the effort to pressure Ukraine to open investigations, he was directed by Giuliani to threaten the Ukrainian government with the suspension of all U.S. aid unless they agreed to open investigations into Trump’s rivals. (Giuliani has denied Parnas’ allegations.)

Legal experts have noted that his allegations would amount to a criminal conspiracy.

Former U.S. Attorney Glenn Kirschner said, “Parnas puts Giuliani in a firsthand way in a criminal conspiracy to bribe and extort Ukraine.”

Randall Eliason told The Washington Post, “If it’s true that Trump instructed Giuliani to tell Parnas to convey the message that aid would be withheld unless Ukraine announced the investigations, that potentially implicates all three of them in a conspiracy to solicit a bribe … Giuliani conveying the message [to Parnas constitutes] an overt act in furtherance of a conspiracy.”

Finally, they conclude:

"Conclusion

Desperate to hide his actions from the American public, Trump has engaged in an unprecedented effort to obstruct the impeachment investigation. He ordered the entirety of the federal government to ignore congressional requests and subpoenas for documents and witnesses.

As the House Intelligence Committee report notes:

[N]ot a single document has been produced by the White House, the Office of the Vice President, the Office of Management and Budget, the Department of State, the Department of Defense, or the Department of Energy in response to 71 specific, individualized requests or demands for records in their possession, custody, or control."

"Moreover, according to the same report, “[a]t President Trump’s direction, twelve current or former Administration officials refused to testify as part of the House’s impeachment inquiry, ten of whom did so in defiance of duly authorized subpoenas.”

At this point, it is up to a majority of senators to demand a fair trial that includes both witnesses and evidence. Otherwise, they will be little more than accomplices in Trump’s efforts to cover up his crimes.

Max Bergmann is a senior fellow at the Center for American Progress and served in the State Department from 2011 to 2017. Sam Berger is vice president for Democracy and Government Reform at the Center and served in the Obama administration from 2010 to 2017."

One last Block quote from https://www.mitchell-attorneys.com/common-law-fraud

Mitchell, Robert D. “The Elements of Common Law Fraud.” Robert D. Mitchell, Complex Financial Litigation, www.mitchell-attorneys.com/common-law-fraud.

The Nine Elements of Common Law Fraud

In the United States, common law generally identifies nine elements needed to establish fraud: (1) a representation of fact; (2) its falsity; (3) its materiality; (4) the representer’s knowledge of its falsity or ignorance of its truth; (5) the representer’s intent that it should be acted upon by the person in the manner reasonably contemplated; (6) the injured party’s ignorance of its falsity; (7) the injured party’s reliance on its truth; (8) the injured party’s right to rely thereon; and (9) the injured party’s consequent and proximate injury. See, e.g., Strategic Diversity, Inc. v. Alchemix Corp., 666 F.3d 1197, 1210 n.3, 2012 U.S. App. LEXIS 1175, at *25 n.3 (9th Cir. 2012) (quoting Staheli v. Kauffman, 122 Ariz. 380, 383, 595 P.2d 172, 175 (1979)); Rice v. McAlister, 268 Ore. 125, 128, 519 P.2d 1263, 1265 (1975); Heitman v. Brown Grp., Inc., 638 S.W.2d 316, 319, 1982 Mo. App. LEXIS 3159, at *4 (Mo. Ct. App. 1982); Prince v. Bear River Mut. Ins. Co., 2002 UT 68, ¶ 41, 56 P.3d 524, 536-37 (Utah 2002).

To successfully allege a claim for common law fraud, a plaintiff must plead each element with specificity and particularity. See, e.g., Baron v. Pfizer, Inc., 820 N.Y.S.2d 841, 12 Misc. 3d 1169(A) (N.Y. App. Div. 2006) (holding that New York law requires a cause of action for fraud be pled with greater specificity than other causes of action (citing Small v. Lorillard Tobacco Co., 94 N.Y.2d 43, 57, 720 N.E.2d 892, 898 (N.Y. 1999))); Enyart v. Transamerica Ins. Co., 195 Ariz. 71, 77, 985 P.2d 556, 562 (Ariz. Ct. App. 1998) (“Each element [of fraud] must be supported by sufficient evidence. ‘Fraud may never be established by doubtful, vague, speculative, or inconclusive evidence.’” (quoting Echols v. Beauty Built Homes, Inc., 132 Ariz. 498, 500, 647 P.2d 629, 631 (1982))); Liniger v. Sonenblick, 532 P.2d 538, 539-40, 23 Ariz. App. 266, 267-68 (Ariz. Ct. App. 1975) (“Actionable fraud cannot exist without a concurrence of all essential elements.” (citing Nielson v. Flashberg, 101 Ariz. 335, 339, 419 P.2d 514, 518 (1966))); but see Zimmerman v. Loose, 162 Colo. 80, 87-88, 425 P.2d 803, 807 (1967) (concluding that “fraud may be inferred from circumstantial evidence” and that direct proof of reliance is unnecessary to prevail on a common law fraud claim); but see Denbo v. Badger, 503 P.2d 384, 386, 18 Ariz. App. 426, 428 (Ariz. Ct. App. 1972) (reasoning that a party need not allege with particularity whether the party “had a right to rely on representations,” because this element is “determined from the very facts alleged” (citing Jamison v. S. States Life Ins. Co., 412 P.2d 306, 3 Ariz. App. 131 (1966))). Notably, “conclusory language” will not satisfy the specificity requirement of a common law fraud claim. Small v. Fritz Cos., Inc., 30 Cal. 4th 167, 184, 65 P.3d 1255, 1265 (Cal. 2003); see Armed Forces Ins. Exch. v. Harrison, 2003 UT 14, 16, 70 P.3d 35, 40 (Utah 2003) (stressing that “mere conclusory allegations in a pleading, unsupported by a recitation of relevant surrounding facts, are insufficient to preclude summary judgment”).

Each of the nine elements of common law fraud is examined in turn below.

I. First Element of Common Law Fraud: A Representation of Fact

The first common law fraud element is the representation of a fact. “A representation within the meaning of the law of fraud is anything short of a warranty, which proceeds from the action or conduct of the party charged, and which is sufficient to create upon the mind a distinct impression of fact conducive to action.” St. Louis & S. F. R. Co. v. Reed, 37 Okla. 350, 355, 132 P. 355, 357 (1913); see BLACK’S LAW DICTIONARY (9th ed. 2009) (defining “representation” as “[a] presentation of fact – either by words or by conduct – made to induce someone to act”); see Nielson, 101 Ariz. at 339, 419 P.2d at 518 (reasoning that a defendant’s issuance of a certificate purporting to state laden and unladen weight of scrap metal in plaintiff’s truck constituted a representation). To successfully plead this element, a plaintiff “must allege, with specificity and particularity . . . what misrepresentations were made, when they were made, who made the representations and to whom they were made.” Connick v. Suzuki Motor Co., 174 Ill. 2d 482, 496-97, 675 N.E.2d 584, 591 (1996) (citing Board of Educ. v. A,C & S, Inc., 131 Ill. 2d 428, 457, 546 N.E. 2d 580, 594 (1989); see DiVittorio v. Equidyne Extractive Indus., Inc., 822 F.2d 1242, 1247, 1987 U.S. App. LEXIS 8319, at *15 (2d Cir. 1987) (noting that allegations of fraud “ought to specify the time, place, speaker, and content of the alleged misrepresentations” (citing Luce v. Edelstein, 802 F.2d 49, 54, 1986 U.S. App. LEXIS 31424, at *12 (2d Cir. 1986))).

For example, if a plaintiff baldly alleges that a company “made fraudulent representations in magazine advertisements, sales brochures, new car manuals, and publicity,” a court will hold the complaint to be “inadequate” and dismiss the claim because it did not “state, which, if any, of the plaintiffs heard these representations and relied on them.” Connick, supra.

A representation also includes a party’s failure to disclose certain facts. See Sharp v. Idaho Inv. Corp., 95 Idaho 113, 122, 504 P.2d 386, 395 (1972) (reasoning that “oral representations, written false statements, and material omissions” could all sufficiently constitute a representation”); see (Schmeusser v. Schmeusser, 559 A.2d 1294, 1297, 1989 Del. LEXIS 165, at *7 (Del. Supr. 1989) (“Fraud may also occur through deliberate concealment of material facts, or by silence in the face of a duty to speak.”). Facts must be disclosed when they are “so vital and material to a transaction that, if known by one party and not the other, the agreement would be voidable.” Turner v. Enders, 15 Wn. App. 875, 879, 552 P.2d 694, 697 (Wash. Ct. App. 1976).

However, as a general rule, “speculation and expressions of hope for the future do not constitute actionable representations of fact.” Albert Apt. Corp v. Corbo Co., 582 N.Y.S.2d 409, 410, 182 A.D.2d 500 (N.Y. App. Div. 1992) (citing Quasha v. Am. Natural Beverage Corp., 171 A.D.2d 537, 567 N.Y.S.2d 257 (N.Y. App. Div. 1991). Thus, “a party does not make an actionable representation of fact when predicting a future event with no knowledge of whether or not the event may occur.” Id. (citing Lloyd I. Isler, P.C. v. Sutter, 160 A.D.2d 609, 610, 554 N.Y.S.2d 253, 255 (N.Y. App. Div. 1990); see Sharp, supra (citing Pocatello Security Trust Co. v. Henry, 35 Idaho 321, 206 P. 175 (1922)) (“[T]here is a general rule in [the] law of deceit that a representation consisting of [a] promise or a statement as to a future event will not serve as basis for fraud, even though it was made under circumstances as to knowledge and belief which would give rise to an action for fraud had it related to an existing or past fact.”).

There can be exceptions to the general rule. For example, Idaho recognizes the following two exceptions when analyzing representations in futuro: “(1) fraud may be predicated upon the nonperformance of a promise in certain cases where the promise is the device to accomplish the fraud; and (2) in cases where promises are blended or associated with misrepresentations of fact, there is fraud if a promise is accompanied with statements of existing facts showing the ability of the promisor to perform the promise without which it would not have been accepted or acted upon.” Sharp, supra (citations omitted).

II. Second Element of Common Law Fraud: Falsity of the Representation

The second common law fraud element is the falsity of the representation. “A false representation is the cornerstone to an action in fraud.” Sharp, supra. A representer’s “state of mind or intent” can demonstrate the falsity of the representation. Heitman, 638 S.W.2d at 319, 1982 Mo. App. LEXIS 3159 at *5 (reasoning that a representation was true at the time it was made after the speaker acted in conformity with the representation for over eight years); see Nielson, supra (reasoning that “uncontradicted evidence” showing plaintiff’s truck was not weighed on some occasions after unloading demonstrated that defendant’s representations to the contrary were “false”).

For example, if an employee of a bank represents he will modify an individual’s mortgage payment schedule and not report any late payments made pursuant to the modified plan to credit reporting agencies but then neglects to modify the schedule, the representation was false. Blau v. Am.’s Servicing Co., No. CV-08-773-PHX-MHM, 2009 U.S. Dist. LEXIS 90632 (D. Ariz. Sept. 28, 2009).

III. Third Element of Common Law Fraud: Materiality of the Representation

The third common law fraud element is the materiality of the representation. “A representation or concealment of a fact is material if it operates as an inducement to the [other party] to enter into the contract, where, except for such inducement, it would not have done so.” Prudential Ins. Co. v. Anaya, 78 N.M. 101, 105, 428 P.2d 640, 644 (1967) (quoting Modisette v. Found. Reserve Ins. Co., 77 N.M. 661, 667-68, 427 P.2d 21, 26 (1967); see Colaizzi v. Beck, 2006 Pa. Super 41, ¶ 9, 895 A.2d 36, 40 (Pa. Super. Ct. 2006) (“A misrepresentation is material if it is of such character that if it had not been misrepresented, the transaction would not have been consummated.” (citing Sevin v. Kelshaw, 417 Pa. Super. 1, 10, 611 A.2d 1232, 1237 (Pa. Super. Ct. 1992))). The materiality of a representation cannot be inferred from the pleadings, rather, it must be plead with specificity. Benson v. Geller, 619 S.W.2d 947, 949, 1981 Mo. App. LEXIS 2954, at *5-6 (Mo. Ct. App. 1981).

For example, “[t]o be material, the false statement does not have to actually contribute to a loss under the [contract],” instead, it just needs to induce the other party to act. Prudential Ins. Co., 78 N.M. at 104-05, 428 P.2d at 643-44. Accordingly, the proper test for materiality is “whether the plaintiff, as a reasonably prudent [person] would have rejected the [contract] if it had known the true facts concerning the [false representation].” Id. ; see BLACK’S LAW DICTIONARY (9th ed. 2009) (defining “material representation” as “[a] representation to which a reasonable person would attach importance in deciding his or her course of action in a transaction”).

For example, if an employee of a bank represents he will modify an individual’s mortgage payment schedule and not report any late payments made pursuant to the modified plan to credit reporting agencies but then neglects to modify the schedule, the representation was false. Blau v. Am.’s Servicing Co., No. CV-08-773-PHX-MHM, 2009 U.S. Dist. LEXIS 90632 (D. Ariz. Sept. 28, 2009).

IV. Fourth Element of Common Law Fraud: Representer’s Knowledge of the Representation’s Falsity or Ignorance of the Truth

The fourth common law fraud element requires the representer to either have knowledge of the representation’s falsity or else be reckless in his ignorance of its truth. “False representations made recklessly and without regard for their truth in order to induce action by another are the equivalent of misrepresentations knowingly and intentionally uttered.” Engalla v. Permanente Med. Grp., Inc., 15 Cal. 4th 951, 974, 938 P.2d 903, 917 (1997) (quoting Yellow Creek Logging Corp. v. Dare, 216 Cal. App. 2d 50, 55, 30 Cal. Rptr. 629, 632 (Cal. Ct. App. 1963); see Anderson v. Knox, 297 F.2d 702, 720-21, 1961 U.S. App. LEXIS 3058, at *55-56 (9th Cir. 1961) (reasoning that the “knowledge” requirement is satisfied if it is shown that the representations were made with reckless disregard for their truth or falsity); see Nielson, supra (reasoning that a representation purporting to show laden and unladen weight of plaintiff’s truck was fraudulent when defendant knew the truck had not been weighed).

“Knowledge of falsity can be adequately pleaded by alleging facts that constitute strong circumstantial evidence of conscious misbehavior or recklessness which lead to an inference that the defendants knew of the falsity.” Adelphia Recovery Trust v. Bank of Am., 624 F. Supp. 2d 292, 329, 2009 U.S. Dist. LEXIS 3834, at *109 (S.D.N.Y. 2009) (citing Lerner v. Fleet Bank, F.3d 273, 293, 2006 U.S. App. LEXIS 20326, at *47 (2d Cir. 2006)).

For example, “a definite statement of a material fact made by a party who does not know the statement to be true, and has no reasonable grounds for believing it to be true, will, if false, have the same legal effect as a statement of what the party positively knows to be untrue.” State ex. Rel. Redden v. Disc. Fabrics, Inc., 289 Or. 375, 385, 615 P.2d 1034, 1039 (1980) (quoting Amort v. Tupper, 204 Or. 279, 287, 282 P.2d 660, 663-64 (1955).

V. Fifth Element of Common Law Fraud: Representer’s Intent to Induce the Other Party to Act on the Representation

The fifth common law fraud element is the representer’s intent to induce the other party to act in accordance with the representation. “[T]he fundamental character of fraud is the communication of a misimpression to induce another to rely on it.” Estate of Schwarz v. Philip Morris, Inc., 206 Or. App. 20, 39, 135 P.3d 409, 422 (Or. Ct. App. 2006). “An unperformed promise does not give rise to a presumption that the promisor intended not to perform when the promise was made.” Bash v. Bell Tel. Co., 411 Pa. Super. 347, 361, 601 A.2d 825, 832 (Pa. Super. Ct. 1992) (quoting Fidurski v. Hammill, 328 Pa. 1, 3, 195 A. 3, 4 (1937)). However, “[a] defendant who acts with knowledge that a result will follow is considered to intend the result.” Ernst & Young, L.L.P. v. Pac. Mut. Life Ins. Co., 51 S.W.3d 573, 578, 2001 Tex. LEXIS 61, at *16 (2001); Elizaga v. Kaiser Found. Hospitals, 259 Ore. 542, 548, 487 P.2d 870, 874 (1971).

This element of fraud does not require a direct relationship between the alleged fraudfeasor and a specific known person; it is sufficient if the fraudfeasor has “reason to expect” the person to act or to refrain from action in reliance upon the misrepresentation, “in the type of transaction in which he intends or has reason to expect the person’s conduct to be influenced.” Ernst & Young, L.L.P., supra. Thus, to prove reason to expect reliance, “the maker of the misrepresentation must have information that would lead a reasonable man to conclude that there is an especial likelihood that it will reach those persons and will influence their conduct. There must be something in the situation known to the maker that would lead a reasonable man to govern his conduct on the assumption that this will occur.” Id. at 581, 2001 Tex. LEXIS 61 at *21 (citing RESTATEMENT (SECOND) OF TORTS § 531 (1977)).

For example, if a third-party to the representation alleges fraud, her “reliance must be especially likely and justifiable” in order for the false representation to become actionable. Id. Accordingly, “if the false representations be made with a view of reaching the third person to whom it is repeated, and for the purpose of influencing him,” a cause of action for common law fraud exists. Id. at 578, 2001 Tex. LEXIS 61 at *5.

VI. Sixth Element of Common Law Fraud: Injured Party’s Ignorance of the Representation’s Falsity

The sixth common law fraud element is the injured party’s ignorance of the representation’s falsity. If a plaintiff knows a representation is false, a cause of action for common law fraud will not exist. Lettunich v. Key Bank Nat’l Ass’n, 141 Idaho 362, 368, 109 P.3d 1104, 1110 (2005) (holding that a plaintiff was not ignorant of the falsity of oral representations because he signed documents outlining state laws in direct contrast to the representations on the same day).

If a plaintiff only knows the falsity of some of the elements of a representation, that knowledge will not prevent a finding of fraud based on the concealment of other elements. See Burris v. Burris, 904 S.W.2d 564, 568, 1995 Mo. App. LEXIS 1398, at *9-10 (Mo. Ct. App. 1995) (reasoning that a plaintiff’s knowledge of some of the concealed items would not prevent a finding of fraud based on the concealment of others).

However, if, under the circumstances, the injured party should have reasonably researched more into the representation, a court will not consider the party to be ignorant. See Fields v. Mitch Crawford’s Holiday Motors Co., 947 S.W.2d 818, 821, 1997 Mo. App. LEXIS 1125, at *7-8 (Mo. Ct. App. 1997) (reasoning that a common law fraud claim based on a material representation about a car’s mileage odometer was not fraudulent because the plaintiff’s “background and knowledge, sufficiently placed [the plaintiff] on notice of the odometer discrepancy” because the plaintiff “was forty years-old at the time of trial,” “an experienced car buyer,” “[held] a paralegal degree,” “knew the odometer had been replaced,” and “noticed that the odometer discrepancy box had been checked on the retail buyers order”).

Element of Common Law Fraud: Injured Party’s Actual Reliance on the Truth of the Representation

The seventh common law fraud element is the injured party’s actual reliance on the truth of the representation. “Actual reliance occurs when a misrepresentation is ‘an immediate cause of a plaintiff’s conduct, which alters his legal relations,’ and when, absent such representation, ‘he would not, in all reasonable probability, have entered into the contract or other transaction.’” Engalla, 15 Cal. 4th at 976, 938 P.2d at 919 (quoting Spinks v. Clark, 147 Cal. 439, 444, 82 P. 45, 47 (1905). Markedly, “it is not logically impossible to prove reliance on an omission.” Mirkin v. Wasserman, 5 Cal. 4th 1082, 1093, 858 P.2d 568, 574 (1993). Indeed, a plaintiff “need only prove that, had the omitted information been disclosed, one would have been aware of it and behaved differently.” Id.

An injured party’s actual reliance on a representation is often the most difficult element of common law fraud to prove. Indeed, many states have rejected the “fraud on the market” doctrine which made it unnecessary for buyers or sellers of stock to prove they relied on a defendant’s misrepresentations. Id. Instead, “the plaintiff must allege, with specificity, actions, as distinguished from unspoken and unrecorded thoughts and decisions, that indicate the plaintiff actually relied on the misrepresentations.” Fritz Cos., Inc., 30 Cal. 4th at 184, 65 P.3d at 1266; but see Zimmerman, supra (holding that direct proof of reliance is unnecessary to prevail on a common law fraud claim because “fraud may be inferred from circumstantial evidence”).

For example, if a plaintiff never “actually read[s] or hear[s] the alleged misrepresentations,” but instead “relies on the integrity of the securities market and the securities offering process, and the fidelity, integrity and superior knowledge of defendants,” the plaintiff did not allege “actual reliance.” Mirkin, 5 Cal. 4th at 1089, 858 P.2d at 571; see Sharp, 95 Idaho at 124, 504 P.2d at 397 (“To be actionable the representation must have been relied on at the time of the transaction.”).

In most states, the injured party’s reliance must have been reasonable or justifiable. See, e.g., Meader v. Francis Ford, Inc., 286 Ore. 451, 456, 595 P.2d 480, 482 (1979) (to prove fraud, “[t]he representation must be justifiably relied upon by plaintiff in taking action or in refraining from it to his damage”); Kaufman v. I-Stat. Corp., 165 N.J. 94, 109, 754 A.2d 1188, 1195 (2000) (reasoning that plaintiff must have “justifiably relied” on defendant’s representation); Smith v. Brutger Cos., 569 N.W.2d 408, 413, 1997 Minn. LEXIS 781, at *15 (Minn. 1997) (reasoning that one element of fraud is plaintiff’s “reasonable reliance on the misrepresentation”). The Oregon Supreme Court applied the following subjective and objective standard when determining reasonable reliance:

If he is a person of normal intelligence, experience and education, he may not put faith in representations which any such normal person would recognize at once as preposterous or which are shown by facts within his observation to be so patently and obviously false that he must have closed his eyes to avoid discovery of the truth, and still compel the defendant to be responsible for his loss. The matter seems to turn upon an individual standard of the plaintiff’s own capacity and the knowledge which he has, or which may fairly be charged against him from the facts within his observation in the light of his individual case.

Cocchiara v. Lithia Motors, Inc., 353 Ore. 282, 298, 297 P.3d 1277 (2013) (quoting Keeton, Prosser and Keeton on the Law of Torts § 108 at 750-51 (5th ed. 1984); see Martin v. Miller, 24 Wash. App. 306, 309-10, 600 P.2d 698, 701 (Wash. Ct. App. 1979) (reasoning that reliance is “reasonable and justifiable” if the plaintiffs have no prior knowledge or experience in a field, but instead rely upon the representations of plaintiff’s superior knowledge and experience).

Accordingly, “[r]eliance is ‘justifiable’ only when ‘circumstances [are] such to make it reasonable for plaintiff to accept defendant’s statements without an independent inquiry or investigation.’” Philipson & Simon v. Gulsvig, 154 Cal. App. 4th 347, 364, 64 Cal. Rptr. 3d 504, 517 (Cal. Ct. App. 2007) (quoting Wilhelm v. Pray, 186 Cal. App. 3d 1324, 1332, 231 Cal. Rptr. 355, 358 (1986)); see Mother Earth, Ltd. v. Strawberry Camel, Ltd., 72 Ill. App. 3d 37, 51-52, 390 N.E.2d 393, 405 (Ill. App. Ct. 1979) (reasoning that reliance after limited inquiry may also be justifiable if a defendant’s actions have lulled the plaintiff into a “false sense of security”).

h Element of Common Law Fraud: Injured Party’s Right to Rely on the Representation

The eighth common law fraud element is the injured party’s right to rely on the representation. A party does not have a right to rely on a representation if she is aware the representation is false, not enforceable, or not made to her. See Lininger, 23 Ariz. App. at 268, 532 P.2d at 540 (holding that a party did not have the right to rely on a representation because he “was aware that the instrument had to be approved by counsel for one of the parties, reduced to writing to comply with the Statute of Frauds and signed by the parties”).

For example, “[a] person making a representation is only accountable for its truth or honesty to the very person or persons whom he seeks to influence; no one else has a right to rely on the representation and to allege its falsity as a wrong to him under a claim of fraud.” Hall v. Douglas, 380 S.W.3d 860, 869, 2012 Tex. App. LEXIS 7281, at *14 (Tx. App. 2012) (citing Westcliff Co. Inc. v. Wall, 153 Tex. 271, 267 S.W.2d 544, 546 (1954); see Nielson, supra (reasoning that a scrap metal buyer who paid fees for defendant’s services of weighing seller’s truck when laden and unladen had the right to rely on defendant’s representation that he performed the weighing).

Essentially, “[a] party is not justified in relying on representations when he or she had ample opportunity to ascertain the truth of the representations before acting.” Capiccioni v. Brennan Naperville, Inc., 339 Ill. App. 3d 927, 939, 791 N.E.2d 553, 563 (Ill. App. Ct. 2003) (citing Salisbury v. Chapman Realty, 124 Ill. App. 3d 1057, 1063, 465 N.E.2d 127, 132 (Ill. App. Ct. 1984)). Therefore, the question of whether a party had a right to rely on a defendant’s representation “must be answered in light of all of the facts of which the plaintiff[] had actual knowledge as well as those which [she] might have discovered by the exercise of ordinary prudence.” Salisbury, supra (citing Soules v. General Motors Corp., 79 Ill. 2d 282, 286-87, 402 N.E.2d 599, 601 (1980)).

nt of Common Law Fraud: Injured Party Suffered Consequent and Proximate Injury

The ninth and final common law fraud element is proof of the injured party’s consequent and proximate injury. “It is of the very essence of an action of fraud and deceit that the same shall be accompanied by damage, and neither damnum absque injuria nor injuria absque damnum by themselves constitute a good cause of action.” George Hunt, Inc. v. Wash-Bowl, Inc., 348 So. 2d 910, 912, 1977 Fla. App. LEXIS 15920, at *5 (Fla. Dist. Ct. App. 1977) (quoting Stokes v. Victory Land Co., 99 Fla. 795, 802, 128 So. 408, 410 (1930)); Cocchiara, 353 Or. at 299 (“Most notably, a plaintiff will have to prove damages to bring a successful [fraud] claim.”); Larsen v. Pacesetter Sys., Inc., 74 Haw. 1, 29, 837 P.2d 1273, 1288 amended on reh’g in part, 74 Haw. 650, 843 P.2d 144 (1992) (“An action based on fraud will not lie where plaintiff has suffered no injury or damage.” (citing Hawaii’s Thousand Friends v. Anderson, 70 Haw. 276, 286, 768 P.2d 1293, 1301 (1989))). The plaintiff must have incurred the loss “in the type of transaction in which the maker of the representation intends or has reason to expect his or her conduct to be influenced.” Ernst & Young, L.L.P., 51 S.W.3d at 577, 2001 Tex. LEXIS 61 at *8-9 (citing RESTATEMENT (SECOND) OF TORTS § 531 (1977)). “It may differ in matters of detail or in extent, unless these differences are so great as to amount to a change in the essential character of the transaction.” Id.

In the common law fraud context, “to be actionable the alleged misrepresentation must not only have induced the recipient’s reliance, but must also have caused the recipient’s loss.” Clayton v. Heartland Res., Inc., 754 F. Supp. 2d 884, 899, 2010 U.S. Dist. LEXIS 143996, at *41 (W.D. Ky. 2010) (quoting Flegles, Inc. v. Truserv Corp., 289 S.W.3d 544, 553, 2009 Ky. LEXIS 23, at *18 (2009)). Importantly, the term “cause” means “legal or proximate cause, which consists of a finding of causation in fact.” Id. (quoting Flegles, Inc., supra); see also Glaser v. Enzo Biochem, Inc., 464 F.3d 474, 477, 2006 U.S. App. LEXIS 23968, at *5-6 (4th Cir. 2006) (affirming dismissal of a common law fraud claim due to insufficient pleading of loss causation); Lincoln Nat. Life Ins. Co. v. Snyder, 722 F.Supp.2d 546, 559-60, 2010 U.S. Dist. LEXIS 71127, at *31-33 (D. Del. 2010) (finding loss causation required for common law fraud claim under Delaware state law); Kosovich v. Metro Homes, LLC, 2009 U.S. Dist. LEXIS 121390, at *19-21 (S.D.N.Y. 2009) (finding the common law fraud claim deficient for failure to establish loss causation).

“Generally speaking, to be actionable, harm must constitute something more than ‘nominal damages, speculative harm, or the threat of future harm.’” Philipson & Simon, 154 Cal. App. 4th at 364, 64 Cal. Rptr. 3d at 517 (quoting Buttram v. Owens-Corning Fiberglas Corp., 16 Cal. 4th 520, 531 n. 4, 941 P.2d 71, 77 n. 4 (1997). Accordingly, “damage claims are not ripe or recoverable” until the plaintiff “is actually exposed to liability toward a third party.” Id.

For example, a plaintiff is not harmed if she is “in exactly the same situation” before and after the representation. Rice, 268 Ore. at 128-29, 519 P.2d at 1265. Thus, even if the “plaintiff[] ha[s] established all the other elements necessary to maintain an action for fraud,” she will not successfully plead common law fraud if she does not establish that a judgment will affect her current situation. Id.

Conclusion

In sum, a plaintiff bringing a common law fraud claim must plead with specificity and particularity that the opposing party intentionally or recklessly represented a material and false past or existing fact with the intent to cause the plaintiff to act in accordance with the representation and that the plaintiff ignorantly and reasonably relied upon the representation to her injury.

In addition, for me the litmus test to allege that a mistake is intentional with intent to cause an adverse effect on my disability reviews is, can the mistake be linked to adversely affecting a disability law? A typo, or repeat word, or a voice reader mistake does not meet the litmus test in my opinion.

Some of these are my Beliefs, Writings at Issue, Issue Stated, Legal Argument, Supporting Documents, Block quotes, Writings, Best Copy; Any errors, misstatements, typos, omissions are without malicious intent and I will correct if contacted; if I agree they are mistakes. Rod Jackson.

The last of the Whistleblower; “The Journalist.” Maybe, just maybe, this is only my opinion if it was not real. The Truth. You would think I was Jesus or something.

One more Emblematic of a Real Problem, One Rhetorical Symbolism Commentary Metaphorical Prose by Rod

Respectfully, VA Veteran (s) Whistleblower trying to not to be framed, sacrificing for all Veterans and future Veterans

Rodney Jackson