When Henry Stanley posed the famous query, ‘‘Dr. Livingstone, I presume?,’’ he made a deduction based on common sense and probability. His question was amusing not only by virtue of its formality, but also because of the strength of the circumstantial evidence before him: In the Tanzanian village of Ujiji, David Livingstone was probably the only other Caucasian man for a thousand miles in any direction. Despite the strength of the circumstantial evidence, however, Stanley posed the words in the form of a question, not as a statement of fact. He allowed his addressee to verify the presumed fact.
In fraud-based class action litigation, plaintiffs often characterize presumptions of reliance as statements of fact, punctuated with an exclamation point rather than a question mark. Presumptions of reliance, they argue, arise whenever the defendant has misrepresented or omitted a ‘‘material fact.’’ This permits them to dispense with individualized proof that the defendant’s conduct actually duped class members to their detriment.
Originally published in BNA Product Safety & Liability Reporter on January 13, 2014.
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