Vagaries of Particularity: New York CPLR 3016(b)

Few tools are as handy to civil defense counsel as pleading rules imposing a particularity obligation. Absent such rules, participants in unprofitable ventures would find it all too easy to assert fraud against counterparties. In federal practice, the familiar FRCP 9(b) provides a reliable bulwark against the “in terrorem or stigmatizing effect on defendants and their reputations” of loosely pleaded fraud claims.¹ Federal courts emphasize that Rule 9(b) guards against strike suits—actions of dubious merit designed to extract a settlement through plaintiff’s threatened access to the instruments of discovery.² For these reasons, the federal bench usually enforces strictly the heightened pleading standard requiring a claimant to specify the “who, what, when, where and how” of an alleged fraud.³

But in state court practice, CPLR 3016(b), the counterpart to FRCP 9(b), has been applied inconsistently, and some leading commentators have even questioned the viability of a heightened pleading standard on fraud claims. This article reviews the interpretation of CPLR 3016(b) in New York courts, and comments on the role of a heightened pleading standard for fraud claims in state practice.

Initial Restricted Reading