Dominique, a certified public accountant, provides accounting services to Eagle Corporation. The services include preparing Eagle's financial reports and issuing opinion letters based on the reports. In 2008, Eagle falls into serious financial trouble, but neither Dominique's reports nor her opinion letters indicate this situation. Relying on Dominique's portrayal of Eagle's financial situation, Eagle borrows a large sum of money to build a new shipping facility. In lending Eagle the money, First National Bank relies on Dominique's opinion letter. Dominique is aware of this reliance. If Dominique did not engage in intentional fraud but was negligent, what is her potential liability?

Question

What will be an ideal response?

Answer 1

Regarding the accountant's potential liability to the bank, most courts would hold her liable for negligence, but the standard for imposing this liability varies. There are three different views. The traditional rule (the Ultramares rule) states that accountants owe a duty of care only to those persons for whose primary benefit the accountant prepares reports or issues opinion letters. In the absence of privity, a party could not recover from an accountant. Under that rule, the accountant in this problem would not be held liable to the bank. Under a slight modification of this rule, some courts hold that if a third party has a sufficiently close relationship or nexus (link or connection) with an accountant, then the privity requirement may be satisfied without establishing an accountant-client relationship. Under this modification, the accountant would be held liable because he knew that the bank relied on her letter. The majority of courts have adopted the position taken by Section 552 of the Restatement (Second) of Torts, under which an accountant's liability extends to persons for whose benefit the accountant "intends to supply the information or knows that the recipient intends to supply it" and to those persons whom the accountant "intends the information to influence or knows that the recipient so intends." Under this rule, the accountant will be held liable to the bank for negligent misstatements or omissions, because he knew that the bank was relying on her work product when deciding whether to make the loan. A few other courts hold accountants liable to any users whose reliance on an accountant's statements or reports is reasonably foreseeable. Of course, under this standard the accountant in the hypothetical would clearly be held liable.