Justice Shirley Werner Kornreich
Kooyman moved to dismiss the fraud cause of action in the second amended complaint (SAC) against him. DSM2x sued defendants asserting claims, including fraud related to an asset purchase agreement (APA). The claim against Kooyman was that he made two sets of fraudulent representations in connection with the execution and implementation of the APA. The court noted, contrary to Kooyman’s arguments, one may assert a claim for fraud based on a representation of future conduct. Yet, it noted while the rule permitted a fraud claim to be based on a defendant’s expression of opinion regarding a corporate financial projection, there must still be a nexus between the opinion and an untrue fact. Here, the court found DSM2x has not alleged a single fact that was incompatible with Kooyman’s promises relating to virtual factoring. It stated the portions of the SAC cited by DSM2x all refer to Kooyman’s intentions without identifying a conflicting fact. The court ruled DSM2x may not maintain its fraud claims against Kooyman as they were improperly duplicative of its breach of contract claims. Also, as DSM2x failed to allege any representation either unrelated to the corporate defendants’ contractual obligations or beyond the scope of Kooyman’s authority, Kooyman’s motion was granted.