“There’s nothing about [the doctrine] that we would want to shield people who commit fraud just because there’s a contract in the mix,” Tobisman said. “And in fact it would create some kind of perverse incentives for people to draw somebody into a contractual relationship because then they could have their way with them.”
Tobisman said Uber agrees that if fraudulent concealment induces a contract, a claim would not fall outside the economic loss doctrine. But she also argued that concealment could still occur during the execution of a contract.
A key ruling on the economic loss doctrine, the high court’s 2004 opinion in Robinson Helicopter v. Dana, held that fraudulent inducement is not barred under the economic loss doctrine but didn’t “expressly state that this exception applies to both concealment and to misrepresentation,” Rattagan said in a brief to the court, which also said the Ninth Circuit question didn’t specify concealment before or during a contract, so the high court should answer both.