Even though the court in Rudman summarily dismissed the "fraud" issue, the court's brief discussion sparked the cynic in me. Bad faith must play an important role in the judge or jury's logic, admittedly or not, right? While the court conceded that some of Cowles' testimony was manipulative, it does make you wonder if Cowles was simply not pleased with what Rudman had to offer after working with him for a couple of months and then decided to "ice" him.
If we shift to Collins' issue as head chef, though, doesn't it seem like Marrimount's decision to hire a Hispanic assistant chef was just a demonstration of managerial oversight without the bad faith factor...even if it was an important issue to Collins? Regardless, it seems impossible to separate what some judges and juries might call bad faith and what other judges might call a legitimate business decision. Thoughts?
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This raises some good questions -- and I'm curious what others think. Here's another thought: does bad faith matter or is it something that just impacts the possible remedy? That is, do we care why a party breached or is it simply the event of a breach that matters? Sometimes a failure to perform is not a breach (e.g., impossibility). However, once there is a breach, does it matter why?
Think about that in the Collins and Rudman contexts -- does bad faith on the part of the employer change the analysis for what is a breach or is it merely indicative of breach?
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