Legal Commentary

I had fun the last few days kicking around my old stomping ground at the University of Miami, and catching up with some former colleagues.  Somehow, one of them and I ended up on the topic of "cold offers" (something he hadn't heard about), and the notion that firms may sometimes tell their summer associates that, even though there won't really be a permanent job for them at the firm, the summer associate may tell other employers that s/he does have an offer, and may even so note on their resume.

Assuming that this is an accurate understanding of how cold offers work (and, given how little I know about firms, I concede that it might not be), why isn't it fraud for the summer associate to so describe such an offer? At least at common law [with some variance among jurisdictions], fraud requires (1) that a material representation was made; (2) the representation was false; (3) when the representation was made, the speaker knew it was false or made it recklessly without any knowledge of the truth and as a positive assertion; (4) the speaker made the representation with the intent that the other party should act upon it; (5) the party acted in reliance on the representation; and (6) the party thereby suffered injury.



So, if a summer associate relies upon a cold offer to get hired by a different firm, and if the new firm can show injury (perhaps by showing that they would not have hired that individual if he did not represent that he had a permanent offer), doesn't that make out a case for common-law fraud?



Believe me -- I am incredibly sensitive to the pressures of the current job market, and to the significance of individuals being able to avoid the appearance that the reason they did not receive a permanent offer was performance-based. But at some point, isn't some of this very very shady?