“Puffing”

A common area in which the mail/wire fraud statutes often arise is in the realm of consumer fraud. This is typically triggered when the consumer either mails a check for payment, or sends the payment via wire transfer. Often consumer fraud cases turn on the distinction between “puffing” (e.g. “this product is the best on the market,” etc.) and actual fraud (e.g. knowingly overstating the resale value of an item). Often this turns on the difference between the value of the goods as represented and the actual value of the goods. In making this determination courts often consider the degree of departure from industry norms such as profit margins. Note that consumer fraud is most often a private civil litigation, but with upon application of the mail/wire fraud statutes, it becomes a matter for federal criminal prosecution. In the classic example case, a defendant who sold used cars wholesale turned back the odometers to increase the resale value. The unwitting car dealers to whom he sold the cars mailed in the title applications, and this was enough to support a conviction for mail fraud. The court reasoned that the transfer of title was part of the execution of and essential to the perpetration of the consumer fraud scheme. There is a current split of authority on whether a “de minimis” exception exists to the mail fraud statute; that is, whether the statute is applicable when the difference in value is almost negligible on an individual basis, but substantial when considered in the aggregate. The majority of the federal courts hold that the statute does apply in such cases, where the minority have held it does not.