Kousisis v. United States

(Slip Opinion) OCTOBER TERM, 2024 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

KOUSISIS ET AL. v. UNITED STATES

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

No. 23–909. Argued December 9, 2024—Decided May 22, 2025

The Pennsylvania Department of Transportation (PennDOT) awarded

petitioners Stamatios Kousisis and Alpha Painting and Construction

Co. two contracts for painting projects in Philadelphia. Federal regu-

lations required contract awardees to subcontract a portion of every

contract to a disadvantaged business enterprise. So as part of the bid-

ding process, Kousisis falsely represented that Alpha would obtain its

paint supplies from Markias, Inc., a prequalified disadvantaged busi-

ness. This was a lie. Unbeknownst to PennDOT, Kousisis arranged

for Markias to function as a mere “pass-through” entity. As a pass-

through, Markias did not provide any paint supplies. To the contrary,

its only role was that of a paper pusher, funneling checks and invoices

to and from Alpha’s actual suppliers. Not only did this arrangement

contradict Kousisis’s prior representations, it also violated the require-

ment that disadvantaged businesses perform a “commercially useful

function.” 49 CFR §26.55(c). In the end, however, Alpha performed

the painting projects to PennDOT’s satisfaction and pocketed over $20

million in gross profit.

The Government charged Alpha and Kousisis with wire fraud and

conspiracy to commit the same. 18 U. S. C. §§1343, 1349. The charges

were premised on the fraudulent-inducement theory—in other words,

that petitioners had induced PennDOT to award them the painting

contracts under materially false pretenses. After a jury convicted Al-

pha and Kousisis of wire fraud, they moved for acquittal. In their view,

despite the lack of disadvantaged-business participation, PennDOT

had received the full economic benefit of its bargain. So, petitioners

contended, the Government could not prove that they had schemed to

defraud PennDOT of “money or property” as §1343 requires. The

2 KOUSISIS v. UNITED STATES

Syllabus

Third Circuit rejected this argument, deepening the division over the

validity of a federal fraud conviction when the defendant did not seek

to cause the victim net pecuniary loss.

Held: A defendant who induces a victim to enter into a transaction under

materially false pretenses may be convicted of federal fraud even if the

defendant did not seek to cause the victim economic loss. Pp. 5–20.

(a) To convict Alpha and Kousisis, the Government needed to prove

that they used the wires to execute a “scheme or artifice to defraud, or

for obtaining money or property by means of false or fraudulent pre-

tenses, representations, or promises.” §1343. Under this Court’s prec-

edent, a defendant commits wire fraud only if he both engaged in de-

ception and had money or property as an object of his fraud. See

Ciminelli v. United States, 598 U. S. 306, 312. It follows from this rule,

Alpha and Kousisis say, that a federal fraud conviction cannot stand

unless the defendant sought to cause the victim net pecuniary loss.

Not so. The fraudulent-inducement theory is consistent with both the

text of §1343 and this Court’s precedent. Pp. 5–20.

(1) The text of §1343 does not mention economic loss, let alone re-

quire it. In fact, Alpha and Kousisis’s conduct satisfied each element

of §1343: They devised a scheme to “obtai[n] money” (tens of millions)

from PennDOT through false representations about their compliance

with the disadvantaged-business requirement. And while petitioners

argue otherwise, a scheme may still constitute wire fraud even if the

defendant provides something of value in return. To “obtain” means

“to gain or attain possession,” Webster’s Third International Diction-

ary 1559, and money or property is no less “obtained” simply because

something else is given in return. Pp. 7–8.

(2) Petitioners argue that economic loss is inherent to the com-

mon-law understanding of fraud, a term that appears twice in the wire

fraud statute. But when Congress uses a common-law term, the pre-

sumption that the term “brings [its] old soil with it” applies only to the

extent that the term has a settled meaning. Sekhar v. United States,

570 U. S. 729, 733. At common law, the term “fraud” had an expansive

reach; its elements and remedies depended on the plaintiff’s alleged

injury. In contract-rescission actions or prosecutions for false pre-

tenses, for example, most courts did not require the victim to show eco-

nomic loss. Instead, it was sufficient that the victim had “received

property of a different character or condition than [it] was promised,”

even if of equal value. W. Keeton, D. Dobbs, R. Keeton, & D. Owen,

Prosser and Keeton on Law of Torts §110, p. 766 (Prosser & Keeton).

Stated otherwise, it was the deception-induced deprivation of prop-

erty—not economic loss—that common-law courts generally deemed

injurious. See Stillwell v. Rankin, 55 Mont. 130, 135, 174 P. 186, 187.

Contrast the tort of deceit: To have a complete cause of action, the

Cite as: 605 U. S. ____ (2025) 3

Syllabus

plaintiff must have suffered economic loss. See Prosser & Keeton §110,

at 765. In sum, then, the common law did not establish a general rule

requiring economic loss in all fraud cases, so the Court will not read

such a requirement into §1343. Pp. 8–13.

(3) Petitioners concede that the common law did not require eco-

nomic loss in every case. But their purported exception—cases in

which either the plaintiff received “something different from what was

promised” or the bargain “involv[ed] an item with unique qualities,”

Reply Brief 15—lacks a driving principle. At the right level of speci-

ficity, anything can be described as “unique” or “different from” some-

thing else. Indeed, the common law has long embraced a different

standard—namely, materiality—as the principled basis for distin-

guishing everyday misstatements from actionable fraud. Today, the

Court reiterates “that materiality of falsehood is an element of,” and

thus a limit on, the federal fraud statutes. Neder v. United States, 527

U. S. 1, 25. But because Alpha and Kousisis have not contested the

materiality of their representations, the Court does not resolve the

parties’ debate about the proper standard for materiality under §1343.

Pp. 14–16.

(b) The fraudulent-inducement theory is neither foreclosed by, nor

inconsistent with, the Court’s precedent. The Court has twice rejected

the argument that a fraud conviction depends on economic loss, first

in Carpenter v. United States, 484 U. S. 19, and then in Shaw v. United

States, 580 U. S. 63. And despite Alpha and Kousisis’s contrary argu-

ments, the fraudulent-inducement theory does not permit a fraud con-

viction premised on mere interference with the State’s power to regu-

late. No matter the underlying theory of fraud, §1343 requires that

“money or property” have been an object of the fraudster’s scheme. The

money-or-property requirement also explains why the fraudulent-in-

ducement theory does not, as petitioners maintain, collapse the dis-

tinction between the wire fraud statute and the statutes that prohibit

conspiracies to defraud the United States, see 18 U. S. C. §371, and

false or fraudulent statements in federal matters, see §1001. Nor does

the theory undermine this Court’s precedent holding that, aside from

the honest-services exception, §1343 does not “protect intangible inter-

ests unconnected to traditional property rights.” Ciminelli, 598 U. S.,

at 312. If a scheme instead targets some kind of intangible interest—

for example, a citizen’s interest in “impartial government”—the fraud-

ulent-inducement theory is inapplicable. McNally v. United States,

483 U. S. 350, 355. Finally, the fraudulent-inducement theory does

not “repackage” the right-to-control theory rejected in Ciminelli. Un-

like the right-to-control theory, fraudulent inducement does not treat

“mere information as the protected interest.” 598 U. S., at 315. Ra-

ther, it protects money and property. Pp. 16–19.

4 KOUSISIS v. UNITED STATES

Syllabus

(c) The fraudulent-inducement theory does not risk turning every

misrepresentation designed to induce a transaction into property

fraud. Instead, the theory criminalizes a particular species of fraud,

and the “demanding” materiality requirement substantially narrows

the universe of actionable misrepresentations. Universal Health Ser-

vices, Inc. v. United States ex rel. Escobar, 579 U. S. 176, 194. And

while the wire fraud statute is broad, it is up to Congress, if it so

chooses, to change it. P. 19.

82 F. 4th 230, affirmed.

BARRETT, J., delivered the opinion of the Court, in which ROBERTS,

C. J., and THOMAS, ALITO, KAGAN, KAVANAUGH, and JACKSON, JJ., joined.

THOMAS, J., filed a concurring opinion. GORSUCH, J., filed an opinion con-

curring in part and concurring in the judgment. SOTOMAYOR, J., filed an

opinion concurring in the judgment.

Cite as: 605 U. S. ____ (2025) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

United States Reports. Readers are requested to notify the Reporter of

Decisions, Supreme Court of the United States, Washington, D. C. 20543,

pio@supremecourt.gov, of any typographical or other formal errors.

SUPREME COURT OF THE UNITED STATES

_________________

No. 23–909

_________________

STAMATIOS KOUSISIS, ET AL., PETITIONERS v.

UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT

[May 22, 2025]

JUSTICE BARRETT delivered the opinion of the Court.

Stamatios Kousisis and the industrial-painting company

he helped manage, Alpha Painting and Construction Co.,

secured two government contracts for painting projects in

Philadelphia. Both contracts required the participation of

a disadvantaged business—and in its bids for the projects,

Alpha represented to the Pennsylvania Department of

Transportation (PennDOT) that it would obtain its materi-

als from a qualifying supplier. See 49 CFR §§26.21(a), 26.5

(2024). This promise turned out to be an empty one: In ad-

dition to using the supplier solely as a pass-through entity,

Alpha and Kousisis submitted multiple false certifications

to cover up their scheme. So although Alpha’s paint work

met expectations, its adherence to the disadvantaged-

business requirement did not.

The Government charged Alpha and Kousisis with wire

fraud, asserting that they had fraudulently induced Penn-

DOT to award them the painting contracts. See 18 U. S. C.

§1343. Under the fraudulent-inducement theory, a defend-

ant commits federal fraud whenever he uses a material mis-

statement to trick a victim into a contract that requires

handing over her money or property—regardless of whether

2 KOUSISIS v. UNITED STATES

Opinion of the Court

the fraudster, who often provides something in return,

seeks to cause the victim net pecuniary loss. We must de-

cide whether this theory is consistent with §1343, which

reaches only those schemes that target traditional money

or property interests. See Ciminelli v. United States, 598

U. S. 306, 316 (2023). It is, so we affirm.

I

When two Philadelphia landmarks, the Girard Point

Bridge and the 30th Street Station, fell into disrepair,

PennDOT began soliciting bids for their restoration. Kou-

sisis, Alpha’s project manager, submitted a bid for each pro-

ject. His bidding proved successful: With respect to the

Girard Point project, PennDOT awarded a $70.3 million

contract to a joint venture comprising Alpha and two other

companies. And with respect to the 30th Street project, Al-

pha and another company (again operating as a joint ven-

ture) secured a $15 million subcontract, which represented

nearly a third of the $50.8 million total winning bid.

Federal grants from the U. S. Department of Transporta-

tion (DOT) accounted for a large portion of the funding for

each project. As a result, both the State and Federal Gov-

ernments had a say in how the projects were completed.

Relevant here, DOT requires that grant recipients

like PennDOT establish and “actively implemen[t]” a

disadvantaged-business program. 49 CFR §§26.21,

26.39(c); see also 112 Stat. 113–115. A “[d]isadvantaged

[b]usiness [e]nterprise,” according to DOT, is “a for-profit

small business” that is majority owned and controlled by

“one or more individuals who are both socially and econom-

ically disadvantaged.” §26.5 (italics omitted). Because

DOT aspires to devote at least 10 percent of federal grant

funding to such businesses, grant recipients must set “over-

all goal[s]” for disadvantaged-business participation in

their “DOT-assisted contracts.” §§26.41, 26.45(a)(1).

Cite as: 605 U. S. ____ (2025) 3

Opinion of the Court

Consistent with this rule, PennDOT required that bid-

ders for the Girard Point and 30th Street projects commit

to subcontracting a percentage of the total contract

amount—six and seven percent, respectively—to a disad-

vantaged business. Failing to comply with this require-

ment would constitute “a material breach” and could “result

in [contract] termination.” App. 114, 175. Accordingly, as

part of the bidding process, Kousisis represented that Al-

pha would acquire approximately $6.4 million in painting

supplies from Markias, Inc., a prequalified disadvantaged

business.

This was a lie. As later memorialized in a commitment

letter, Alpha and Kousisis concocted a scheme in which

Markias would function as a mere “pass-through” entity.

The scheme operated as follows: Kousisis arranged for Al-

pha’s actual paint suppliers, with whom he negotiated di-

rectly, to “generate purchase orders . . . billed to Markias.”

Id., at 193. When Markias received an invoice, it tacked on

a few-percent fee and then forwarded the inflated invoice to

Kousisis. He, in turn, issued two checks: one paid Markias

for its mark up, and the other covered the actual cost of the

supplies. In short, Markias was no more than a paper

pusher, funneling checks and invoices to and from Alpha’s

actual suppliers. Not only did this arrangement contradict

Kousisis’s prior representations, it also contravened DOT’s

rule that a contributing disadvantaged business must “per-

for[m] a commercially useful function.” §26.55(c).1

Kousisis’s scheme initially went undetected. As the pro-

jects progressed, he falsely reported qualifying payments to

Markias. PennDOT, satisfied with Alpha’s paint and repair

work, paid it accordingly. By the time the last coat of paint

——————

1 At least on these facts, DOT left no room for ambiguity: A disadvan-

taged business “does not perform a commercially useful function if its

role is limited to that of an extra participant in a transaction, contract,

or project through which funds are passed to obtain the appearance” of

disadvantaged-business “participation.” §26.55(c)(2).

4 KOUSISIS v. UNITED STATES

Opinion of the Court

had dried, Alpha had turned a gross profit of over $20 mil-

lion. And Markias, for its “pass-through” services, had

pocketed a total of about $170,000.

Once the deception came to light, a grand jury indicted

Alpha and Kousisis for wire fraud and conspiracy to commit

the same. See 18 U. S. C. §§1343, 1349. After a trial, the

jury found them guilty of three counts of wire fraud and one

count of conspiracy. Alpha and Kousisis moved for a judg-

ment of acquittal, arguing that because their paintwork

met PennDOT’s expectations, PennDOT had received the

full economic benefit of its bargain. Thus, notwithstanding

the lack of disadvantaged-business participation, the Gov-

ernment could not prove that they had schemed to defraud

PennDOT of “money or property” as the federal wire fraud

statute requires. §1343.

The District Court rejected this argument, and the Third

Circuit affirmed the convictions. As both courts explained,

“obtaining the [G]overnment’s money or property was pre-

cisely the object” of Alpha and Kousisis’s “fraudulent

scheme.” 82 F. 4th 230, 240 (2023); see also 2019 WL

4126484, *13 (ED Pa., June 17, 2019) (“[T]he scheme tar-

geted PennDOT’s money, because the agency paid for ser-

vices—construction performed with materials supplied by a

[disadvantaged business]—which it did not receive”). “Put

simply,” Alpha and Kousisis “set out to obtain millions of

dollars that they would not have received but for their

fraudulent misrepresentations.” 82 F. 4th, at 240.

The circuits are divided over the validity of a federal

fraud conviction when the defendant did not seek to cause

the victim net pecuniary loss. Several circuits, now includ-

ing the Third, hold that such convictions may stand. See,

e.g., id., at 240–244; United States v. Leahy, 464 F. 3d 773,

787–789 (CA7 2006); United States v. Granberry, 908 F. 2d

278, 280 (CA8 1990); United States v. Richter, 796 F. 3d

1173, 1192 (CA10 2015). Others disagree. See, e.g., United

States v. Shellef, 507 F. 3d 82, 108–109 (CA2 2007); United

Cite as: 605 U. S. ____ (2025) 5

Opinion of the Court

States v. Sadlar, 750 F. 3d 585, 590–592 (CA6 2014); United

States v. Bruchhausen, 977 F. 2d 464, 467–468 (CA9 1992);

United States v. Takhalov, 827 F. 3d 1307, 1312–1314

(CA11 2016); United States v. Guertin, 67 F. 4th 445, 450–

452 (CADC 2023). We granted certiorari to resolve the

split. 602 U. S. ___ (2024).

II

To convict Alpha and Kousisis, the Government needed

to prove that they used the wires to execute a “scheme or

artifice to defraud, or for obtaining money or property by

means of false or fraudulent pretenses, representations, or

promises.” 18 U. S. C. §1343. Despite the use of the dis-

junctive “or,” we have declined to interpret §1343 as estab-

lishing alternative pathways to a conviction. Instead, read-

ing the two clauses together, we have held that “the money-

or-property requirement of the latter phrase” operates as a

limitation on the former. McNally v. United States, 483

U. S. 350, 358–360 (1987).2 A defendant commits federal

wire fraud, in other words, only if he both “ ‘engaged in de-

ception’ ” and had “ ‘money or property’ ” as “ ‘an object’ ” of

his fraud. Ciminelli, 598 U. S., at 312 (quoting Kelly v.

United States, 590 U. S. 391, 398 (2020)).

The money-or-property requirement lies at the heart of

this dispute. Although the lower courts once interpreted

the phrase “money or property” as something of a catchall,

we recently reiterated that the federal fraud statutes reach

only “traditional property interests.” Ciminelli, 598 U. S.,

at 316. Schemes that target the exercise of the Govern-

ment’s regulatory power, for example, do not count. See

Kelly, 590 U. S., at 400; see also Cleveland v. United States,

531 U. S. 12, 23–24 (2000). Nor do schemes that seek to

——————

2 Although McNally involved the mail fraud statute, §1341, “ ‘we have

construed identical language in the wire and mail fraud statutes in pari

materia.’ ” Ciminelli v. United States, 598 U. S. 306, 312, n. 2 (2023); see

Kelly v. United States, 590 U. S. 391, 398 (2020).

6 KOUSISIS v. UNITED STATES

Opinion of the Court

deprive another of “intangible interests unconnected to

property.” Ciminelli, 598 U. S., at 315; see also McNally,

483 U. S., at 356.3 And in all cases, because money or prop-

erty must be an object of the defendant’s fraud, the tradi-

tional property interest at issue “must play more than some

bit part in a scheme.” Kelly, 590 U. S., at 402. Obtaining

the victim’s money or property must have been the “aim,”

not an “incidental byproduct,” of the defendant’s fraud. Id.,

at 402, 404.

From these rules, Alpha and Kousisis attempt to glean

another: A federal fraud conviction cannot stand, they ar-

gue, unless the defendant sought to hurt the victim’s bot-

tom line. Brief for Petitioners 2; Reply Brief 8. Yet the the-

ory under which petitioners were prosecuted—what they

call the fraudulent-inducement theory—is devoid of an

economic-loss requirement. As both parties describe it, the

theory supports liability for federal fraud anytime a defend-

ant “ ‘us[es] falsehoods to induce a victim to enter into a

transaction.’ ” Brief for Petitioners 29 (quoting Brief in Op-

position 9). In these situations, the defendant need not—

and given the reciprocal nature of most transactions, often

will not—aim to inflict economic loss. Because Alpha and

Kousisis did not aim to do so here, they contend that their

convictions are invalid.

We are not convinced. The fraudulent-inducement the-

ory is consistent with both the text of the wire fraud statute

and our precedent interpreting it. We therefore reject peti-

tioners’ proposed economic-loss requirement.

——————

3 Responding to our decision in McNally, Congress amended the stat-

ute to include schemes that seek to “deprive another of the intangible

right of honest services.” §1346; see also Cleveland, 531 U. S., at 19–20

(describing this history). That exception is irrelevant here.

Cite as: 605 U. S. ____ (2025) 7

Opinion of the Court

A

1

Start with the statute. To be guilty of wire fraud, a de-

fendant must (1) “devis[e]” or “inten[d] to devise” a scheme

(2) to “obtai[n] money or property” (3) “by means of false or

fraudulent pretenses, representations, or promises.” §1343.

The prototypical fraudulent-inducement scheme plainly

satisfies each of these statutory elements. Under the the-

ory, a defendant (1) “devise[s]” a “scheme” (2) to induce the

victim into a contract to “obtai[n]” her “money or property”

(3) “by means of false or fraudulent pretenses.” No matter

how long we stare at it, the broad, generic language of

§1343 leaves us struggling to see any basis for excluding a

fraudulent-inducement scheme.

Take the facts of this very case. By using Markias as a

pass-through entity, petitioners “devised” a “scheme” to ob-

tain contracts through feigned compliance with PennDOT’s

disadvantaged-business requirement. Ibid. Their goal? To

“obtai[n] money” (tens of millions of dollars) from Penn-

DOT. Ibid. And how? By making a number of “false or

fraudulent . . . representations”—first about their plans to

obtain paint supplies from Markias and later about having

done exactly that. Ibid. Section 1343 requires nothing

more.

Alpha and Kousisis’s contrary view rests on the premise

that a scheme cannot constitute wire fraud if, as here, the

defendant provides something—be it money, property, or

services—of equal value in return. But the statute says oth-

erwise. To “obtain” something means “to gain or attain pos-

session” of it, usually “by some planned action or method.”

Webster’s Third International Dictionary 1559 (2002). A

thing is no less “obtained” simply because something else is

simultaneously given in return. An art collector who ac-

quires a rare sculpture can rightfully say that she “ob-

tained” it, notwithstanding the six-figure price tag. And be-

cause the meaning of “obtain” does not turn on the value of

8 KOUSISIS v. UNITED STATES

Opinion of the Court

the exchanged items, the art collector can still say that she

“obtained” the sculpture even if it was not objectively worth

the price she paid.

In short, the wire fraud statute is agnostic about eco-

nomic loss. The statute does not so much as mention loss,

let alone require it. Instead, a defendant violates §1343 by

scheming to “obtain” the victim’s “money or property,” re-

gardless of whether he seeks to leave the victim economi-

cally worse off. A conviction premised on a fraudulent in-

ducement thus comports with §1343.

2

Resisting this conclusion, Alpha and Kousisis assert that

economic loss is part and parcel of the common-law under-

standing of fraud, a term that appears in two forms in the

wire fraud statute. §1343 (a “scheme or artifice to defraud

. . . by means of false or fraudulent pretenses” (emphasis

added)). When Congress uses a term with origins in the

common law, we generally presume that the term “ ‘brings

the old soil with it.’ ” Sekhar v. United States, 570 U. S. 729,

733 (2013). As petitioners note, we have long interpreted

the statutory term “fraud” (and its variations) this way—

that is, by reference to its common-law pedigree. See Neder

v. United States, 527 U. S. 1, 21–22 (1999); Universal

Health Services, Inc. v. United States ex rel. Escobar, 579

U. S. 176, 187 (2016) (“[T]he term ‘fraudulent’ is a paradig-

matic example of a statutory term that incorporates the

common-law meaning of fraud”).

This old-soil principle applies, however, only to the extent

that a common-law term has “ ‘accumulated [a] settled

meaning.’ ” Neder, 527 U. S., at 21; Kemp v. United States,

596 U. S. 528, 539 (2022). So to show that economic loss is

necessary to securing a federal fraud conviction, Alpha and

Kousisis must show that such loss was “widely accepted” as

a component of common-law fraud. Morissette v. United

States, 342 U. S. 246, 263 (1952). They cannot.

Cite as: 605 U. S. ____ (2025) 9

Opinion of the Court

At common law, “fraud” was a term with expansive reach.

Rather than settle on a single form of liability, courts rec-

ognized at least three, and the particular elements and

remedies turned on the nature of the plaintiff ’s alleged in-

jury.

To appreciate how the three forms differed, it may help

to consider a variation of the facts here. Imagine that Penn-

DOT discovered petitioners’ scheme soon after Alpha and

Kousisis had begun work on the Girard Point and 30th

Street projects. In such a circumstance, law and equity pro-

vided at least three avenues for relief: PennDOT could (1)

seek to rescind the contracts; (2) refer the matter for indict-

ment under the crime of false pretenses; or (3) bring a tort

action against the fraudsters for the damages incurred.

If PennDOT had wanted to rescind the fraud-infected

contracts, most courts would historically have permitted it

to do so even without a showing of economic loss. To obtain

a rescission, PennDOT would have needed to establish only

that it had “received property of a different character or

condition than [it] was promised” (“although of equal

value”) or, more relevant here, that the transaction had

“prove[d] to be less advantageous than as represented”

(“although there [was] no actual loss”). W. Keeton, D.

Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law

of Torts §110, p. 766 (5th ed. 1984) (Prosser & Keeton). Put

differently, many courts would have awarded the equitable

remedy of rescission simply because Alpha and Kousisis

had tricked PennDOT into a bargain materially different

from the one they had promised. See Hirschman v. Healy,

162 Minn. 328, 331, 202 N. W. 734, 735 (1925) (“[I]t is to be

noted that it was not indispensable to prove damages in dol-

lars and cents to have cancellation or rescission of the con-

tract and note for misrepresentations”); Williams v. Kerr,

152 Pa. 560, 565, 25 A. 618, 619 (1893); Spreckels v. Gorrill,

152 Cal. 383, 391, 92 P. 1011, 1015 (1907). To borrow a

summary from Black (of Black’s Law Dictionary fame)

10 KOUSISIS v. UNITED STATES

Opinion of the Court

many “decisions repudiate[d] altogether [a] rule requiring

a showing of actual damage.” 1 H. Black, Rescission of Con-

tracts and Cancellation of Written Instruments §112, p. 314

(1916).4

The same no-loss-required rule applied with equal force

to the crime of false pretenses. As many courts held, the

crime “was complete when the property was fraudulently

obtained.” West v. State, 63 Neb. 257, 259, 88 N. W. 503,

504 (1901); see also Commonwealth v. Coe, 115 Mass. 481,

502–503 (1874); People v. Bryant, 119 Cal. 595, 597, 51

P. 960, 961 (1898); Commonwealth v. Ferguson, 135 Ky. 32,

34, 121 S. W. 967, 968 (1909); F. Byrne, False Pretenses and

Cheats §II(7), in 12 American and English Encyclopaedia of

Law 835 (D. Garland, L. McGehee, & J. Cockcroft eds., 2d

ed. 1899). And because “actual loss” need not “follow[,] . . .

it [was] immaterial that goods given in an exchange secured

by false pretenses were equal in value to those obtained.” 1

E. McClain, Criminal Law §680, p. 686 (1897). Thus, if

someone purchased “a picture upon the assertion untruly

made that it was from the brush of some distinguished

painter,” the fact that “the picture was of value” would not

relieve the seller of “the criminality of the false pretense.”

Bartlett v. State, 28 Ohio St. 669, 672 (1876). In such a case,

the plaintiff had been “actually defrauded” even though she

had not “suffered actual pecuniary loss.” In re Rudebeck,

95 Wash. 433, 440, 163 P. 930, 933 (1917).

The Maine Supreme Court’s decision in State v. Mills is

illustrative. 17 Me. 211 (1840). There, a horse owner rep-

resented to a potential buyer that the horse “was called the

Charley,” even though “he knew that it was not the horse

——————

4 To be sure, some courts saw things differently. See 1 Black, Rescis-

sion of Contracts §112, at 312–313. But because Alpha and Kousisis

must show that an economic-loss requirement “was ‘well-settled’ before

the transplantation” of the term “fraud” into §1343, any divergence

among courts further confirms that the old-soil principle does not apply.

Kemp v. United States, 596 U. S. 528, 539 (2022).

Cite as: 605 U. S. ____ (2025) 11

Opinion of the Court

called by that name.” Ibid. (syllabus). Persuaded, the

buyer exchanged his “colt and five dollars in money” for the

horse. Ibid. But as the buyer soon learned, the horse was

not “the Charley,” though the seller claimed that it “was as

good a horse” and “of equal or greater value” than the colt

and money. Id., at 212. The court, overruling the defend-

ant’s objections to the guilty verdict, explained that the

facts constituted “a case literally within” the false-

pretenses statute. Id., at 218 (majority opinion). Obtaining

a conviction on false pretenses required proving simply

“that one of the pretences [sic] was false, and that the in-

jured party was induced thereby to part with his property.”

Id., at 217.

Treating Mills as an outlier, Alpha and Kousisis argue

that common-law courts generally refused to entertain an

action for fraud if the victim had not been injured. In one

sense, they are correct: We have said that a fraud occurs

only when the victim “has been actually misled to his in-

jury.” Smith v. Richards, 13 Pet. 26, 39 (1839); see also

Clarke v. White, 12 Pet. 178, 196 (1838) (“[A] mere fraudu-

lent intent, unaccompanied by any injurious act, is not the

subject of judicial cognizance” (emphasis added)). But peti-

tioners beg the question by assuming that economic loss

alone could satisfy this common-law “injury” requirement.

As the cases and treatises discussed above confirm, it was

the deception-induced deprivation of property—not eco-

nomic loss—that common-law courts generally deemed in-

jurious.5 See Stillwell v. Rankin, 55 Mont. 130, 135, 174 P.

——————

5 JUSTICE GORSUCH understands us to have “spurn[ed] fraud’s historic

injury rule.” Post, at 2 (opinion concurring in part and concurring in

judgment). Respectfully, he is mistaken. All agree that “at common law,

fraud required proof that the victim was injured.” Ibid. But as the Su-

preme Court of Pennsylvania put it in Williams v. Kerr, an “injury” has

occurred when a fraudster “obtain[s] from an owner, by a false represen-

tation of a fact which he deems material, property which he would not

otherwise have parted with upon the terms which he is thus induced to

accept.” 152 Pa. 560, 565, 25 A. 618, 619 (1893); see also MacLaren v.

12 KOUSISIS v. UNITED STATES

Opinion of the Court

186, 187 (1918) (Courts “do not concern themselves with

wrongs which do not produce injury; but ‘injury’ and ‘pecu-

niary loss’ are not synonymous terms”). Thus, Mills is no

outlier.

That said, a different rule applied to the tort of deceit. To

have a complete cause of action, the plaintiff must have

“suffered substantial damage”; in other words, economic

loss. Prosser & Keeton §110, at 765; see Butler v. Watkins,

13 Wall. 456, 464 (1872); Dura Pharmaceuticals, Inc. v.

Broudo, 544 U. S. 336, 343–344 (2005) (The common-law

deceit action required a plaintiff to show “that he suffered

actual economic loss”). So, returning to the modified facts

introduced above, PennDOT could not have brought a tort

claim for deceit unless Alpha and Kousisis’s scheme had

caused it economic loss. (Maybe PennDOT had passed over

a less costly bid, for example, or restarted the bidding pro-

cess at significant expense.)

Regardless, cases involving deceit are largely inapposite

to the question presented here. Courts required economic

loss not because it was inherent to the common-law under-

standing of fraud, but because a tort action for deceit

——————

Cochran, 44 Minn. 255, 258, 46 N. W. 408, 410 (1890) (“If a party is in-

duced to enter into a contract by fraudulent representations as to a fact

which he deems material, and upon which he has a right to rely, . . . the

party in the wrong should not be heard to say that no real injury can

result from the fact misrepresented”); Carlisle v. State, 76 Ala. 75, 77

(1884) (“The only injury that can be inflicted, ‘by any false pretense or

token,’ by which one person ‘obtains from another any money or other

personal property,’ is the deception which imposes on the confidence of

that other”); 1 E. McClain, Criminal Law §680, p. 686 (1897) (“It is the

obtaining of the money or property that is the perpetration of the fraud”).

And in no sense is our recognition of this common-law definition mere

“dicta.” Post, at 10 (opinion of GORSUCH, J.). Rather, it is essential to our

holding. To reject that pecuniary loss is an element of fraud is to accept—

as common-law courts long have—that a fraud is complete when the de-

fendant has induced the deprivation of money or property under materi-

ally false pretenses.

Cite as: 605 U. S. ____ (2025) 13

Opinion of the Court

“sound[ed] in damage” and thus was designed to compen-

sate a plaintiff for her economic loss. United States v.

Dunn, 268 U. S. 121, 131 (1925); see G. McCleary, Damage

as Requisite to Rescission for Misrepresentation, 36 Mich.

L. Rev. 1, 17 (1937) (describing rescission and damages as

“two entirely different approaches to the problem of relief

for misrepresentation”). So it is no surprise that courts re-

quired deceit victims to “prove damage to establish a right

to recover.” Dunn, 268 U. S., at 131.

To summarize, then, common-law courts did not uni-

formly condition an action sounding in fraud on the plain-

tiff ’s ability to prove economic loss. More specifically, if the

action was one for rescission or a prosecution for false pre-

tenses, the plaintiff ’s required “injury” ordinarily need not

be financial. That sounds the death knell for Alpha and

Kousisis’s reliance on the common law. The old-soil princi-

ple does not apply in the absence of a well-settled rule.

Kemp, 596 U. S., at 539. In Pasquantino v. United States,

for example, we refused to read “the wire fraud statute to

except frauds directed at evading foreign taxes” because the

relevant common-law rule did not “clearly ba[r] such a pros-

ecution.” 544 U. S. 349, 359–360 (2005). So too here: The

common law did not establish a generally applicable rule

that all fraud plaintiffs must plead and prove economic loss,

so we will not read such a requirement into the wire fraud

statute.6 See id., at 364.

——————

6 JUSTICE GORSUCH’s proposed injury requirement suffers from much

the same problem. He relies primarily on cases that involve other ele-

ments of common-law fraud—namely, falsity and intent to defraud. See

post, at 4 (opinion concurring in part and concurring in judgment) (citing

State v. Casperson, 71 Utah 68, 75, 262 P. 294, 296 (1927) (falsity); State

v. Asher, 50 Ark. 427, 430–431, 8 S. W. 177, 178 (1888) (falsity); Rex v.

Williams, 7 Car. & P. 354, 173 Eng. Rep. 158 (N. P. 1836) (Coleridge, J.)

(intent to defraud); People v. Baker, 96 N. Y. 340, 347–348 (1884) (intent

to defraud); People v. Wakely, 62 Mich. 297, 300–303, 28 N. W. 871, 872–

873 (1886) (both)). And as for State v. Palmer, 50 Kan. 318, 32 P. 29

(1893), even the Kansas Supreme Court has said that it “did not define

14 KOUSISIS v. UNITED STATES

Opinion of the Court

3

Even Alpha and Kousisis concede that the common law

did not require economic loss in every case. As they

acknowledge, if a plaintiff was “delivered something differ-

ent from what was promised”—even something of equiva-

lent value—or if the bargain “involv[ed] an item with

unique qualities,” then “failing to deliver as promised might

constitute property fraud.” Reply Brief 15. When pressed

at oral argument, petitioners referred to these scenarios as

“the exception.” Tr. of Oral Arg. 10. But a few examples

reveal just how easily such an “exception” swallows the

rule. If someone contracts for a painting of her grandfather

and instead winds up with a portrait of Grover Cleveland,

petitioners’ so-called “exception” concededly applies. Id., at

9–11. So too if a supplier promises “apples” but instead de-

livers “oranges.” Reply Brief 15. But if these two examples

fit the exception, why not a heap of coal worth a million dol-

lars instead of a gold bar worth the same? Tr. of Oral Arg.

28–30. Or, more to the point, why not services performed

with materials from a non-disadvantaged supplier when

the government demanded a disadvantaged one? Petition-

ers offer no principled way to draw the line.

And there is none, because at the right level of specificity,

anything can be described as “unique” or “different from”

something else. After all, “animal,” “horse,” “sound horse,”

and “the horse called the Charley” are all accurate descrip-

tions of the bargained-for property in Mills. 17 Me., at 212,

216. Only the most specific of those descriptions, “the horse

——————

‘injury.’ ” State v. Schultz, 252 Kan. 819, 848, 850 P. 2d 818, 837 (1993).

JUSTICE GORSUCH also points to a series of cases from the courts of ap-

peals. See post, at 5 (opinion concurring in part and concurring in judg-

ment). But because these cases postdate the enactment of the wire fraud

statute (many by several decades), any rule they articulate—even as-

suming it is a coherent one—cannot possibly satisfy the old-soil principle.

Thus, JUSTICE GORSUCH’s injury requirement rests not on “ ‘well-settled’ ”

soil, but on shifting sands. Kemp, 596 U. S., at 539.

Cite as: 605 U. S. ____ (2025) 15

Opinion of the Court

called the Charley,” distinguishes the property promised

from the property received, yet the court still had no trouble

labeling the case as one of “false pretence [sic], fraudulently

made.” Id., at 218.

Tellingly, Alpha and Kousisis identify no source of au-

thority that supports treating uniqueness as some kind of

exception to the no-loss-required rule. That is probably be-

cause the common law has long embraced a different stand-

ard—namely, materiality—as the principled basis for dis-

tinguishing everyday misstatements from actionable fraud.

Whether in tort or contract law, “materiality look[s] to the

effect on the likely or actual behavior of the recipient of the

alleged misrepresentation.” Universal Health Services, 579

U. S., at 193 (internal quotation marks omitted; alteration

in original). Resembling a but-for standard, materiality

asks whether the misrepresentation “constitut[ed] an in-

ducement or motive” to enter into a transaction. Smith, 13

Pet., at 39. Or, as we explained in Universal Health Ser-

vices, a misrepresentation is material if a reasonable person

would attach importance to it in deciding how to proceed, or

if the defendant knew (or should have known) that the re-

cipient would likely deem it important. 579 U. S., at 193

(citing Restatement (Second) of Torts §538 (1976); Restate-

ment (Second) of Contracts §162(2) (1979)).7

Before us, the parties debate the details of the materiality

standard for purposes of §1343. For their part, Alpha and

Kousisis direct us to the common-law test just described—

what they call “the traditional materiality test.” Reply

——————

7 While JUSTICE GORSUCH is right to note that assessing whether a mis-

representation is material “will not always be simple,” post, at 9 (opinion

concurring in part and concurring in judgment), he overlooks that “ma-

teriality is judged according to an objective standard,” Amgen Inc. v. Con-

necticut Retirement Plans and Trust Funds, 568 U. S. 455, 459 (2013).

That is not true of his proposed injury requirement. As “the horse called

the Charley” example illustrates, whether a victim “ ‘got exactly what he

paid for’ ” will often lie in the eye of the beholder. Post, at 6 (opinion of

GORSUCH, J.) (emphasis added).

16 KOUSISIS v. UNITED STATES

Opinion of the Court

Brief 18–21. The Government, by contrast, proposes an

essence-of-the-bargain test, under which a misrepresenta-

tion is material only if it goes “ ‘to the very essence’ ” of the

parties’ “ ‘bargain.’ ” Universal Health Services, 579 U. S.,

at 194, n. 5 (quoting Junius Constr. Corp. v. Cohen, 257

N. Y. 393, 400, 178 N. E. 672, 674 (1931)); see Brief for

United States 43–45. We need not settle the debate here,

however, because Alpha and Kousisis have not contested

that their misrepresentations were material. For now, it is

enough to reiterate “that materiality of falsehood is an

element of ”—and thus a limit on—the federal fraud stat-

utes. Neder, 527 U. S., at 25. A conviction premised on the

fraudulent-inducement theory cannot be sustained without

it.

B

Petitioners insist that our precedent forecloses the

fraudulent-inducement theory, but they are wrong: We

have twice rejected the argument that a fraud conviction

depends on economic loss. We did so first in Carpenter v.

United States, a case in which the defendants had repeat-

edly leaked the contents of a newspaper’s investment col-

umn. 484 U. S. 19, 23 (1987). Although the scheme did not

cause the newspaper “monetary loss,” it was sufficient, we

held, that the newspaper “ha[d] been deprived of its right

to exclusive use” of its proprietary information. Id., at 26.

Then, in Shaw v. United States, we affirmed a conviction

under the bank fraud statute even though “no bank in-

volved in the scheme” had “suffered any monetary loss.”

580 U. S. 63, 67 (2016). The statute, we explained, “de-

mands neither a showing of ultimate financial loss nor a

showing of intent to cause financial loss.” Ibid.

Still, Alpha and Kousisis contend that the fraudulent-

inducement theory is at odds with other aspects of our prec-

edent. First, they argue that it permits a fraud conviction

premised on mere interference with “the State’s ‘sovereign

Cite as: 605 U. S. ____ (2025) 17

Opinion of the Court

power to regulate.’ ” Kelly, 590 U. S., at 401 (quoting Cleve-

land, 531 U. S., at 23). Not so. No matter the underlying

theory of fraud, §1343 requires that “money or property”

have been an object of the fraudster’s scheme. See 590

U. S., at 393. So if the scheme is one to alter the exercise of

regulatory power—say, by tricking the Government into

handing over a gaming license—the fraudulent-inducement

theory has no role to play. See Cleveland, 531 U. S., at 23–

24. But if, as here, the fraudster seeks to induce the Gov-

ernment into a transfer of its money or property, that loss

is sufficient to sustain a fraud conviction. The loss is not,

as petitioners argue, a mere “incidental byproduct” of a

scheme to manipulate the exercise of regulatory power.

Kelly, 590 U. S., at 403. If anything, the inverse is typically

true: In the mine run of fraudulent-inducement schemes,

undermining the Government’s regulatory interests is

merely “an incidental (even if foreseen) byproduct” of ob-

taining its money or property. See ibid. Here, for example,

Alpha and Kousisis had money in mind. Nothing suggests

that they concocted their scheme with the goal of thwarting

PennDOT’s disadvantaged-business initiative. Such a re-

sult was downstream of their “object” to line their pockets.

Ibid.; see also 82 F. 4th, at 240.

The money-or-property requirement also explains why

the fraudulent-inducement theory does not, as petitioners

maintain, “collapse Congress’s distinction” between the

wire fraud statute and the statutes that prohibit conspira-

cies to defraud the United States, see 18 U. S. C. §371, and

false or fraudulent statements in federal matters, see

§1001. Brief for Petitioners 27. Because these latter stat-

utes are not limited to schemes to “obtai[n] money or prop-

erty,” they extend beyond what the fraudulent-inducement

theory can reach. §1343. See United States v. Ressam, 553

U. S. 272, 274 (2008) (describing a conviction under §1001

for making “false statements to a customs official” to obtain

entry into the United States). Thus, fraudulent inducement

18 KOUSISIS v. UNITED STATES

Opinion of the Court

cannot convert every lie punishable under §371 and §1001

into a fraud offense subject to a possible 20-year sentence.

Nor does the theory undermine our precedent holding

that—aside from the honest-services exception—§1343

does not “protect intangible interests unconnected to tradi-

tional property rights.” Ciminelli, 598 U. S., at 312. As al-

ready discussed, a defendant commits wire fraud only if his

scheme “aimed to deprive” the victim of a traditional prop-

erty interest. Kelly, 590 U. S., at 400; see also Ciminelli,

598 U. S., at 309. If the scheme instead targeted some kind

of intangible interest—for example, a citizen’s interest in

“impartial government”—the fraudulent-inducement the-

ory is inapplicable. McNally, 483 U. S., at 355.

Finally, the fraudulent-inducement theory is not a “re-

packag[ing]” of the right-to-control theory. Reply Brief 11.

In Ciminelli, we rejected the latter theory, which maintains

that the term “ ‘property’ in §1343” includes “ ‘the right to

control the use of one’s assets.’ ” 598 U. S., at 311. Accord-

ing to this strained definition of “property,” a defendant vi-

olates §1343 simply by “schem[ing] to deprive a victim of

potentially valuable economic information necessary to

make discretionary economic decisions.” Id., at 310. Such

a scheme, we held, does not implicate any “traditional prop-

erty interes[t].” Id., at 316.

Unlike the right-to-control theory, fraudulent induce-

ment does not treat “mere information as the protected in-

terest.” Id., at 315. Rather, it protects money and property.

And nothing we said in Ciminelli is at odds with our holding

here. Although the Government urged us to affirm Ci-

minelli’s conviction on an alternative ground—namely, the

fraudulent-inducement theory—we declined to do so be-

cause it would have required us “to assume not only the

function of a court of first view, but also of a jury.” Id., at

317. We did not discuss, much less reject, the fraudulent-

inducement theory. See id., at 317–318 (ALITO, J., concur-

Cite as: 605 U. S. ____ (2025) 19

Opinion of the Court

ring) (observing that the Court had not addressed “the Gov-

ernment’s ability to retry petitioner” on this theory).

III

Alpha and Kousisis warn of the consequences that will

ensue if we endorse the fraudulent-inducement theory.

“Under the theory,” they say, “every intentional misrepre-

sentation designed to induce someone to transact in prop-

erty would constitute property fraud.” Brief for Petitioners

40. In their view, this result threatens fair notice and, by

encroaching into States’ police powers, runs headlong into

principles of federalism. Id., at 38–39.

We are not persuaded. The “demanding” materiality re-

quirement substantially narrows the universe of actionable

misrepresentations. Universal Health Services, 579 U. S.,

at 194. And the boundaries of the fraudulent-inducement

theory are not so imprecise as to risk encroachment on

States’ authority or to “create traps” for the “unwary.”

Snyder v. United States, 603 U. S. 1, 15 (2024). Rather, the

theory criminalizes a particular species of fraud: intention-

ally lying to induce a victim into a transaction that will cost

her money or property. As Judge Learned Hand put it, “[a]

man is none the less cheated out of his property, when he is

induced to part with it by fraud, because he gets a quid pro

quo of equal value.” United States v. Rowe, 56 F. 2d 747,

749 (CA2 1932).

The “language of the wire fraud statute” is undeniably

“broad.” Pasquantino, 544 U. S., at 372. But Congress en-

acted the wire fraud statute, and it is up to Congress—if it

so chooses—to change it.

* * *

Fraudulent inducement “has long been considered a spe-

cies of actionable fraud.” United States v. Feldman, 931

F. 3d 1245, 1270 (CA11 2019) (Pryor, J., concurring). Be-

cause the Third Circuit’s judgment comports with §1343,

20 KOUSISIS v. UNITED STATES

Opinion of the Court

we affirm it.

It is so ordered.

Cite as: 605 U. S. ____ (2025) 1

THOMAS, J., concurring

SUPREME COURT OF THE UNITED STATES

_________________

No. 23–909

_________________

STAMATIOS KOUSISIS, ET AL., PETITIONERS v.

UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT

[May 22, 2025]

JUSTICE THOMAS, concurring.

Petitioners Stamatios Kousisis and Alpha Painting and

Construction Co., Inc., ask the Court to add an economic-

loss requirement to the federal wire-fraud statute, 18

U. S. C. §1343. The Court correctly rejects that request,

and I join its opinion in full.

I write separately to address an issue that the Court re-

serves: whether petitioners’ misstatements were “mate-

rial,” and thus actionable, under §1343. When the Govern-

ment prosecutes a defendant for wire fraud under a theory

of fraudulent inducement, the requirement of “materiality”

provides “the principled basis for distinguishing everyday

misstatements from actionable fraud.” Ante, at 15. Be-

cause petitioners “have not contested that their misrepre-

sentations were material,” the Court has no occasion to pass

on that issue today. Ante, at 16. But, I am skeptical that

petitioners’ misrepresentations were material.

I

Petitioners entered into contracts with the Pennsylvania

Department of Transportation (PennDOT) for the restora-

tion of two Philadelphia properties, the Girard Point Bridge

and the 30th Street Station. The purpose of the Girard

Point Bridge contract was the “preservation of the Girard

Point Bridge.” App. 108. The 30th Street Station contract

2 KOUSISIS v. UNITED STATES

THOMAS, J., concurring

had a similar goal: the “[r]ehabilitation of bridges.” Id., at

169. To achieve these goals, the contracts required paint-

ing, structural steel repairs, roadway reconstruction, and

other miscellaneous construction projects.

The contracts for these two jobs totaled more than a thou-

sand pages and imposed numerous regulatory, technical,

and ethical obligations. Among other things, the agree-

ments required petitioners to abide by the Workmen’s Com-

pensation Act of 1915; to follow specific “Buy America Pro-

visions” that required petitioners to use steel and iron

manufactured in the United States; to generally avoid us-

ing “materials produced by convict labor”; and to “not dis-

criminate on the basis of race, color, national origin or sex.”

See, e.g., App. 112, 114, 117–119, 173, 175.

The contracts also required petitioners to “carry out ap-

plicable requirements of 49 C.F.R. Part 26,” id., at 114, 175

(emphasis deleted), which implements the Federal Govern-

ment’s Disadvantaged Business Enterprise (DBE) pro-

gram. The DBE program is the Government’s “most far-

reaching federal status-based contracting program.” D.

Bernstein, The Modern American Law of Race, 94 S. Cal. L.

Rev. 171, 208 (2021) (Bernstein). Established in 1983, it

sets a goal that at least 10 percent of federal funds author-

ized for any highway and transit program “be expended

with small business concerns owned and controlled by so-

cially and economically disadvantaged individuals.” Sur-

face Transportation Assistance Act of 1982, 96 Stat. 2100.

Under Department of Transportation (DOT) regulations, a

small business qualifies as a so-called DBE if it is “at least

51 percent owned by one or more individuals who are both

socially and economically disadvantaged,” and managed

and controlled “by one or more of the socially and economi-

cally disadvantaged individuals who own it.” 49 CFR §26.5

(2024).

DOT defines the term “socially and economically disad-

Cite as: 605 U. S. ____ (2025) 3

THOMAS, J., concurring

vantaged” primarily on the basis of race and sex. The pro-

gram “rebuttably presume[s]” that any member of certain

enumerated races “has been subjected to racial or ethnic

prejudice or cultural bias within American society because

of his or her identity as a member of a group,” and thus

qualifies as a “socially and economically disadvantaged in-

dividual.” Ibid. Among the groups presumptively eligible

for DBE benefits are “ ‘Black Americans,’ ” “ ‘Hispanic Amer-

icans,’ ” “ ‘Native Americans,’ ” “ ‘Asian-Pacific Americans,’ ”

and “ ‘Subcontinent Asian Americans.’ ” Ibid. The DBE pro-

gram also provides this favorable presumption to women.

Ibid. DBE certifiers “may not question claims of group

membership as a matter of course.” §26.67(a)(3). Thus,

“[i]n practice, being certified as a ‘minority’ to get presump-

tive status as the owner of a disadvantaged business eligi-

ble for preferences primarily operates on the honor code, as

the information is rarely verified.” Bernstein 223.

While those excluded from DOT’s list of presumptively

disadvantaged groups may “attempt to prove” sufficient dis-

advantage, §26.67(d)(1), the application process is “a high

hurdle,” Mid-America Milling Co., LLC v. United States

Dept. of Transp., 2024 WL 4267183, *9 (ED Ky., Sept. 23,

2024). For example, “[a] White male claiming to have expe-

rienced employment discrimination” must submit a de-

tailed “Personal Narrative” providing evidence that “his

employment status and/or limited opportunities to earn in-

come result from specific prejudicial acts directed at him

personally because of an [objective distinguishing feature].”

§26.67(d).

PennDOT incorporated DBE goals into both contracts at

issue in this case, and, as the majority explains, petitioners

misrepresented their compliance with those provisions. See

ante, at 3. The Government prosecuted petitioners under

18 U. S. C. §1343, alleging fraudulent inducement. Ante, at

1. The jury convicted, and petitioner Kousisis was sen-

tenced to nearly six years in prison.

4 KOUSISIS v. UNITED STATES

THOMAS, J., concurring

II

Although the Court leaves the question of materiality for

another day because it was uncontested here, ante, at 15–

16, materiality is an element that the Government must

satisfy in any federal wire-fraud prosecution. See Neder v.

United States, 527 U. S. 1, 25 (1999). The Government ar-

gues that the standard for materiality in this context is the

one this Court articulated in Universal Health Services, Inc.

v. United States ex rel. Escobar, 579 U. S. 176 (2016)—

whether a misrepresentation went to the very “ ‘essence of

the bargain,’ ” Brief for United States 43 (quoting Universal

Health Services, 579 U. S., at 194, n. 5). I seriously doubt

that the DBE provisions can meet this standard.

A

Universal Health Services presented the question

whether “a defendant should face False Claims Act liability

only if it fails to disclose the violation of a contractual, stat-

utory, or regulatory provision that the Government ex-

pressly designated a condition of payment.” Id., at 190.

While we rejected that limitation, we stressed that “a mis-

representation about compliance with a statutory, regula-

tory, or contractual requirement must be material to the

Government’s payment decision in order to be actionable”

under the False Claims Act (FCA). Id., at 192.

We further observed that, “[u]nder any understanding of

the concept, materiality ‘look[s] to the effect on the likely or

actual behavior of the recipient of the alleged misrepresen-

tation.’ ” Id., at 193 (quoting 26 R. Lord, Williston on Con-

tracts §69:12, p. 549 (4th ed. 2003) (Williston)). In contract-

ing specifically, “ ‘[a] misrepresentation is material’ only if

it would ‘likely . . . induce a reasonable person to manifest

his assent,’ or the defendant ‘knows that for some special

reason [the representation] is likely to induce the particular

recipient to manifest his assent’ to the transaction.” 579

U. S., at 193 (quoting Restatement (Second) of Contracts

Cite as: 605 U. S. ____ (2025) 5

THOMAS, J., concurring

§162(2), and Comment c, pp. 439, 441 (1979)). Thus, we ex-

plained, for a contract term to be material, it must go to

“ ‘the very essence of the bargain.’ ” 579 U. S., at 194, n. 5

(quoting Junius Constr. Co. v. Cohen, 257 N. Y. 393, 400,

178 N. E. 672, 674 (1931)); see also 23 Williston §63:3,

p. 483 (4th ed. 2018) (materiality “ ‘go[es] to the root’ ” of the

parties’ agreement, and “touches the fundamental purpose

of the contract”).

This materiality inquiry does not rest solely on a con-

tract’s labels. Even in the face of contrary contract lan-

guage, materiality “cannot be found where noncompliance

is minor or insubstantial.” Universal Health Services, 579

U. S., at 194. A party’s actions may reveal that a contract

term is not material even if the contract’s language would

suggest otherwise. For example, “if the Government regu-

larly pays a particular type of claim in full despite actual

knowledge that certain requirements were violated, and

has signaled no change in its position, that is strong evi-

dence that the requirements are not material.” Id., at 195.

Applying these “familiar and rigorous” principles, ibid.,

n. 6, we made clear that regulatory requirements in a con-

tract are not automatically material. We thus rejected the

Government’s contention that, if it “contracts for health

services and adds a requirement that contractors buy

American-made staplers, anyone who submits a claim for

those services but fails to disclose its use of foreign staplers

violates the False Claims Act.” Id., at 195–196. That logic

would have meant that, “if the Government required con-

tractors to aver their compliance with the entire U. S. Code

and Code of Federal Regulations, . . . failing to mention

noncompliance with any of those requirements would al-

ways be material.” Id., at 196. The FCA, we explained,

“does not adopt such an extraordinarily expansive view of

liability.” Ibid.1

——————

1 In my view, the Court’s reluctance to presume the materiality of every

6 KOUSISIS v. UNITED STATES

THOMAS, J., concurring

The Court reserved the question whether the standard

for materiality in the FCA context is identical to the stand-

ard that applies to wire-fraud prosecutions, id., at 192–193,

and I express no definitive view on that question here. But,

the standard we articulated in Universal Health Services

was a “familiar” one that aligned with authoritative trea-

tises and the common law. Id., at 195, n. 6. And, particu-

larly in light of the Government’s endorsement, see Brief

for United States 43, it, at minimum, provides a useful

baseline for evaluating the DBE provisions’ materiality.

B

The contracts in this case were for bridge repairs, not mi-

nority hiring. There are several reasons to think that the

DBE provisions did not go “ ‘to the very essence of the bar-

gain.’ ” Universal Health Services, 579 U. S., at 194, n. 5.

First, the DBE provisions were irrelevant to the con-

tracts’ fundamental purpose—bridge repair—which sug-

gests that they were the sort of “minor or insubstantial”

conditions that cannot count as material. Id., at 194. As

the Third Circuit recognized below, although petitioners

——————

contract provision is particularly appropriate in the context of Govern-

ment contracting. The Government often tries to use monetary incen-

tives to advance political objectives. For example, the Government some-

times seeks to use its spending power to “create incentives for States to

act in accordance with federal policies.” National Federation of Inde-

pendent Business v. Sebelius, 567 U. S. 519, 577 (2012) (plurality opin-

ion). And, those policies may bear little relation to the expenditure of

federal funds. See, e.g., South Dakota v. Dole, 483 U. S. 203, 218 (1987)

(O’Connor, J., dissenting) (arguing that “a condition that a State will

raise its drinking age to 21” exceeded the Government’s spending power

because it could not “fairly be said to be reasonably related to the ex-

penditure of funds for highway construction”). In Government contract-

ing, the Government’s inclusion of political or regulatory requirements

unrelated to the contracts’ core purpose might simply reflect the Govern-

ment’s attempt to achieve policy goals by leveraging its unmatched bar-

gaining position. The DBE provisions’ apparent irrelevance to bridge re-

pair seems to fit this pattern. See infra this page and 7.

Cite as: 605 U. S. ____ (2025) 7

THOMAS, J., concurring

did not meet PennDOT’s DBE conditions, they “delivered

the requested work, and the quality of the workmanship

and materials [was] uncontested.” 82 F. 4th 230, 244

(2023).

If the DBE conditions “ ‘went to the very essence of the

[parties’] bargain,’ ” Universal Health Services, 579 U. S., at

194, n. 5, the failure to meet those conditions presumably

would have had some impact on the final work product. Ac-

cord, e.g., Cohen, 257 N. Y., at 400, 178 N. E., at 674 (de-

scribing term that goes to an agreement’s “essence” as one

which, if not met, would “destroy the [agreement’s] value”);

3511 13th St. Tenants’ Assn. v. 3511 13th St., N. W. Resi-

dences, LLC, 922 A. 2d 439, 445 (D. C. 2007) (“ ‘For a breach

to be material, it must be so serious [as] to destroy the es-

sential object of the agreement’ ”). But, the DBE conditions

had no bearing on petitioners’ ability to complete their pro-

jects. See 82 F. 4th, at 244. That disconnect tends to sup-

port the conclusion that those requirements would not meet

the “demanding” materiality standard this Court has artic-

ulated. Universal Health Services, 579 U. S., at 194; accord,

e.g., Landmark Health Solutions, LLC v. Not For Profit

Hospital Corp., 950 F. Supp. 2d 130, 137–138 (DC 2013)

(“[C]ompl[iance] with the District’s requirement to be reg-

istered and to obtain a license” did not go to “the essential

purpose” of a contract for “providing management consult-

ing and staffing services”).

Second, the DBE provisions appear to have been less im-

portant than contract terms going to the quality and time-

liness of bridge repair, further indicating that the latter

went to the essence of the parties’ bargain while the former

did not. The contracts required PennDOT to deduct pay-

ments due petitioners if the “work . . . on th[e] project[s]”

was late or unsatisfactory. App. 109, 170. While the con-

tracts labeled the failure to comply with the DBE provisions

“a material breach” that “may result in termination,” id., at

8 KOUSISIS v. UNITED STATES

THOMAS, J., concurring

114, 175 (emphasis added), nothing in the contracts re-

quired PennDOT to take any action, let alone to withhold

or deduct payment. Accord, Brief for United States 19

(DBE noncompliance “could have resulted in corrective ac-

tion” (emphasis added)).

As we explained in Universal Health Services, while “the

Government’s decision to expressly identify a provision as

a condition of payment” is not dispositive of materiality, it

is still relevant evidence that tends to suggest that a par-

ticular term is material. 579 U. S., at 194. Tethering pay-

ment to workmanship and timeliness requirements sug-

gests that the essence of the parties’ contracts was timely

and satisfactory “work . . . on th[e] project[s]”—that is,

“painting, structural steel repairs, expansion dam repairs,

latex modified concrete overlay, and other miscellaneous

construction,” or, more generally, the “[r]ehabilitation of

bridges,” App. 108–109, 169–170. Read “with reference to

the whole” contract, 11 Williston §32:5, p. 692 (4th ed.

2012), the comparative absence of any such express condi-

tions for DBE noncompliance counsels against reading

those provisions into the contract’s “fundamental purpose,”

23 id., §63:3, at 483.

Third, we have explained that the Government’s decision

to fulfill its end of a bargain “despite actual knowledge that

certain requirements were violated” is very “strong evi-

dence that those requirements are not material,” Universal

Health Services, 579 U. S., at 195, and similar logic might

apply where, as here, contract violations are notorious and

widespread. No one contends that the Government had “ac-

tual knowledge” of petitioners’ fraud when it entered into

the contracts. Ibid. But, if DBE fraud is so prevalent that

the Government would have to assume a significant num-

ber of its contractors violate contract provisions requiring

DBE compliance, that fact could cast further doubt on those

provisions’ materiality.

Reports of fraud in the Government’s small-business-

Cite as: 605 U. S. ____ (2025) 9

THOMAS, J., concurring

contracting programs have “emerge[d] with some regular-

ity,” making fraud in these programs “a perennial concern

for Congress and commentators.” Congressional Research

Service, K. Manuel & E. Lunder, Federal Contracting and

Subcontracting With Small Businesses: Issues in the 112th

Congress 33 (2012). The DBE program is no exception:

Fraudulent DBE schemes where minority and women con-

tractors are used as “ ‘false front[s]’ ” is “an area with serious

enforcement and compliance problems that appears to be

nationwide in scope.” Oversight Hearing on the Elimina-

tion of Waste, Fraud, and Abuse in Mandatory Transporta-

tion Programs before the House Committee on Transporta-

tion and Infrastructure, 108th Cong., 1st Sess., 109 (2003)

(Oversight Hearing). Legislators have long recognized that

DBE fraud is a substantial problem, and that “people are

just laughing about the system” and “gaming the system

blatantly.” Id., at 38–39; see also id., at 36 (DOT Inspector

General testifying that DBE fraud “is a serious problem”).

Looking at materiality “from the viewpoint of the [alleg-

edly misleading statement’s] maker,” Restatement (Second)

of Contracts §162, Comment c, at 441, knowledge of ram-

pant misrepresentations in the DBE program could suggest

to a reasonable contractor that, contract language notwith-

standing, the Government does not actually consider DBE

compliance essential to its contracts. Pervasive fraud also

suggests that the Government may be continuing perfor-

mance on its contracts despite knowing that its counterpar-

ties frequently violate DBE requirements, further counsel-

ing against those terms’ materiality. See Universal Health

Services, 579 U. S., at 193–194, n. 5, 195. 2

——————

2 JUSTICE SOTOMAYOR observes that “[n]o cited portion of the record”

shows that PennDOT paid contracts in full despite actual knowledge that

the DBE terms were being violated. Post, at 7 (opinion concurring in

judgment). I have recognized as much, see supra, at 8, which is why I

suggest that my materiality analysis might apply in different DBE-

compliance prosecutions “where materiality is contested,” infra, at 11.

10 KOUSISIS v. UNITED STATES

THOMAS, J., concurring

Fourth, if complying with the DBE provisions would vio-

late the law, it is difficult to see how representing such com-

pliance “would be likely to induce a reasonable person to

manifest his assent.” Restatement (Second) of Contracts

§162, Comment c, at 441. Among other things, the DBE

program imposes an explicitly race-based classification sys-

tem, see supra, at 2–3, which warrants “the strictest judi-

cial scrutiny,” Adarand Constructors, Inc. v. Peña, 515 U. S.

200, 224 (1995). Thus, for the program to survive, the Gov-

ernment would need to prove that it addresses “past gov-

ernmental discrimination” that is “concrete and traceable

to the de jure segregated system,” and that the segregated

system has “discrete and continuing discriminatory effect.”

Students for Fair Admissions, Inc. v. President and Fellows

of Harvard College, 600 U. S. 181, 260 (2023) (THOMAS, J.,

concurring).

I am skeptical that the Government could meet this high

bar. While the Government has not been put to the test in

this case, it appears to have elsewhere endorsed the DBE

program’s race-based benefits on the ground that “minori-

ties represent more than 20% of the population” yet “own

only 9% of all construction firms and receive only about 5%

of construction receipts.” Oversight Hearing, at 41. But,

“ ‘[p]roving broad sociological propositions by statistics is a

dubious business, and one that inevitably is in tension with

the normative philosophy that underlies the Equal Protec-

tion Clause.’ ” Lamprecht v. FCC, 958 F. 2d 382, 398 (CADC

1992) (THOMAS, Cir. J., for the court) (quoting Craig v.

——————

For similar reasons, JUSTICE SOTOMAYOR’s critique of “reports from dec-

ades prior” misses the mark. Post, at 7. The reports and testimony I cite

provide examples suggesting that, in other DBE-compliance prosecu-

tions, defendants may be able to build records demonstrating that the

Government pays contractors despite knowing that they do not comply

with DBE provisions. JUSTICE SOTOMAYOR does not dispute that, if pre-

sented, such records would constitute “strong evidence that [DBE] re-

quirements are not material.” Universal Health Services, 579 U. S., at

195.

Cite as: 605 U. S. ____ (2025) 11

THOMAS, J., concurring

Boren, 429 U. S. 190, 204 (1976)). And, at least one court

has preliminarily enjoined the Government’s use of DBE

goals because the Government could not “justify [the DBE

program’s] discriminatory policies.” Mid-America Milling

Co., 2024 WL 4267183, *11.

It is implausible to think that a “ ‘reasonable person’ ”

would “ ‘attach importance’ ” to contract provisions that

mandate constitutional violations. Universal Health Ser-

vices, 579 U. S., at 193, n. 5. The same intuition applies to

Government actors. Cf. Postal Service v. Gregory, 534 U. S.

1, 10 (2001) (“[A] presumption of regularity attaches to the

actions of Government agencies”). Thus, if the Government

cannot demonstrate the constitutionality of the DBE pro-

gram, I doubt that a provision requiring compliance with

the program could go to the essence of the parties’ bar-

gain—particularly here, given that the very same provi-

sions requiring DBE compliance simultaneously prohibit

“discriminat[ion] on the basis of race, color, national origin

or sex.” App. 114, 175.3

At bottom, the essence-of-the-bargain standard is rigor-

ous and context specific. Although the contracts in this case

used language suggesting the DBE provisions were mate-

rial, see ibid., we have made clear that the materiality in-

quiry turns on substance rather than labels, see Universal

Health Services, 579 U. S., at 190. That focus may doom the

Government’s prosecutions in DBE cases where materiality

is contested.

——————

3 “[A] claim of unconstitutionality” will not “excuse a voluntary, delib-

erate and calculated course of fraud and deceit,” Dennis v. United States,

384 U. S. 855, 867 (1966), but the question whether that unconstitution-

ality might contribute to materiality is distinct. No one disputes that

petitioners did not “rais[e] a challenge to the DBE program’s constitu-

tionality.” Post, at 8 (opinion of SOTOMAYOR, J.). But, had petitioners

done so, they might have been able to rely on the DBE provisions’ uncon-

stitutionality to support an argument that the provisions were not “ma-

terial” to their contracts.

12 KOUSISIS v. UNITED STATES

THOMAS, J., concurring

* * *

In persuading the Court to reject petitioners’ economic-

loss arguments today, the Government has assured us that

“the ‘essence of the bargain’ standard for materiality” will

ensure that federal wire-fraud prosecutions cannot be used

to target benign, everyday misstatements. Brief for United

States 43. Because a demanding approach to materiality is

all that prevents an “extraordinarily expansive view of lia-

bility” from rendering the federal wire-fraud statute nearly

limitless in scope, Universal Health Services, 579 U. S., at

196, lower courts should hold the Government to its word.

Cite as: 605 U. S. ____ (2025) 1

Opinion of GORSUCH, J.

SUPREME COURT OF THE UNITED STATES

_________________

No. 23–909

_________________

STAMATIOS KOUSISIS, ET AL., PETITIONERS v.

UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT

[May 22, 2025]

JUSTICE GORSUCH, concurring in part and concurring in

the judgment.

This case touches on an old question: What is the differ-

ence between a lie and a criminal fraud? Consider an easy

hypothetical. In a phone interview, a couple asks a prospec-

tive babysitter if she has a criminal record. The babysitter

says no, but that’s not right. While she has sought to turn

her life around, a burglary conviction lurks in her past, one

she is too embarrassed to mention. Relying on her misrep-

resentation, the parents hire the babysitter. Her work

proves exemplary and the couple pays her well. Later,

though, the parents discover the babysitter’s lie. They

might be upset and refuse to hire her again. But should the

babysitter face federal fraud charges? Of course not. While

“intentional deceit for purposes of gain ought sometimes to

be punished,” if all misrepresentations amounted to crimi-

nal fraud, “thousands of buyers and sellers” would be fel-

ons. T. Macaulay, J. Macleod, G. Anderson, & F. Millet,

Notes on the Indian Penal Code (1837), in 7 The Life and

Works of Lord Macaulay 527–528 (1897).

How do courts police the line between mere lies and crim-

inal frauds warranting the law’s attention? One important

tool is fraud’s injury requirement. To prove a criminal

fraud, a prosecutor must show that the victim did not re-

ceive what the defendant promised. It is a rule that shields

2 KOUSISIS v. UNITED STATES

Opinion of GORSUCH, J.

people like our babysitter from the prosecutor’s sights. And

it is a rule that keeps judges from becoming arbiters of good

morals. A fraud conviction can mean years, even decades,

in prison. Before a prosecutor may seek, and a court may

authorize, that kind of punishment, the law demands more

than a victimless lie.

While right about much else, the Court’s decision today

contains a footnote that appears to spurn fraud’s historic

injury rule. Under the federal wire-fraud statute, the Court

suggests, it does not matter if the putative victim receives

all he was promised. So long as he parts with any money

or property because of the defendant’s misrepresentation,

the Court seems to say, that is injury enough to sustain a

federal wire-fraud conviction. Ante, at 11, n. 5. It is a star-

tling suggestion, one with no mooring in the common law of

fraud or the wire-fraud statute, and one that risks turning

victimless lies like our babysitter’s into federal felonies. Re-

spectfully, that cannot be the law.

I

The question presented in this case is a narrow one. The

parties ask us to resolve whether the federal wire-fraud

statute, 18 U. S. C. §1343, requires the government to plead

and prove that the defendant caused his victim a “net pecu-

niary loss.” Brief for United States (I) (reciting the question

presented); ante, at 1–2. Today, the Court holds that the

answer is no. Congress, the Court explains, enacted the

federal wire-fraud statute against the backdrop of the com-

mon law. Ante, at 8. And, at common law, fraud required

proof that the victim was injured. Ante, at 11.1 But that

——————

1 Countless cases and treatises support the Court’s conclusion that

each of those common-law doctrines had an injury requirement. For the

crime of false pretenses, see State v. Palmer, 50 Kan. 318, 323–324, 32

P. 29, 30 (1893); State v. Matthews, 44 Kan. 596, 602–603, 25 P. 36, 38

(1890); United States v. Rush, 196 F. 579 (ED Wash. 1912); 2 Bishop on

Criminal Law §§415–417 (J. Zane & C. Zollman eds., 9th ed. 1923); 2 H.

Cite as: 605 U. S. ____ (2025) 3

Opinion of GORSUCH, J.

injury requirement never demanded proof that the victim

suffered a “net pecuniary loss.” So, the Court concludes,

neither does the federal wire-fraud statute. On each of

those points, the Court and I agree.

But having dispatched the question presented, the Court

does not stop there. Instead, the Court proceeds to assert

that the wire-fraud statute’s injury requirement is satisfied

whenever a defendant “obtain[s] . . . property” that a victim

“would not otherwise have parted with” by means of a ma-

terial misrepresentation. Ante, at 11, n. 5. The Court’s

commentary on this score might be easy to miss. It comes

only in a brief footnote deep in the Court’s opinion. And on

first glance, the Court’s remarks might seem innocuous

enough. After all, one might wonder, if a fraud causes a

victim to part with money or property, isn’t that necessarily

an injury?

I worry, though, that initial appearances may deceive and

the Court’s stray footnote could portend trouble. Start with

this difficulty: What the Court says in its footnote does not

square with its reasoning above the line. Throughout the

rest of its opinion, the Court recognizes that the wire-fraud

statute’s references to a “scheme or artifice to defraud” and

“false or fraudulent pretenses,” §1343 (emphasis added),

bring with them the “old soil” of common-law fraud, ante, at

8. As a result, the common-law doctrines governing the

crime of false pretenses, the tort of deceit, and the remedy

of contractual rescission all inform, to one degree or an-

other, the meaning of the wire-fraud statute. Ante, at 9–13.

Yet, contrary to what the Court suggests in its footnote, at

——————

Brill, Cyclopedia of Criminal Law §1271 (1923). For the remedy of con-

tractual rescission, see Williams v. Kerr, 152 Pa. 560, 565, 25 A. 618, 619

(1893); Spreckels v. Gorrill, 152 Cal. 383, 388, 92 P. 1011, 1015 (1907); 1

H. Black, Rescission of Contracts and Cancellation of Written Instru-

ments §37, p. 90 (1916); 2 T. Parsons, Law of Contracts *268–*269 (4th

ed. 1860). And for the tort of deceit, see Dura Pharmaceuticals, Inc. v.

Broudo, 544 U. S. 336, 343–344 (2005).

4 KOUSISIS v. UNITED STATES

Opinion of GORSUCH, J.

common law “[t]he mere obtaining of money [or property]

under false pretenses [did] not alone” satisfy fraud’s injury

requirement. State v. Palmer, 50 Kan. 318, 324, 32 P. 29,

30 (1893); accord, State v. Casperson, 71 Utah 68, 75, 262

P. 294, 296 (1927). Instead, common-law courts usually de-

manded proof that a defendant deprived his victim of “what

he bargained for.” State v. Asher, 50 Ark. 427, 430–431, 8

S. W. 177, 178 (1888). By the time Congress enacted the

wire-fraud statute in 1952, it seems that “every American

jurisdiction except Texas” had adopted a similar rule. Com-

ment, Injury as an Element of Criminal Fraud, 23 U. Chi.

L. Rev. 509, 511, and n. 7 (1956) (Injury as an Element).

Nor is the difference between the Court’s formulation of

fraud’s injury requirement and the common-law rule a neg-

ligible one. To be sure, obtaining money or property by

means of a material misrepresentation will usually injure

the victim. But not always. To appreciate why, some ex-

amples help. Start with some from the common law. In Rex

v. Williams, 7 Car. & P. 354, 173 Eng. Rep. 158 (N. P. 1836)

(Coleridge, J.), a creditor seeking to satisfy a debt ordered

his servant to induce the debtor to hand over “two sacks of

malt” by falsely representing that “his master had bought

[them].” Ibid. Even though the servant “knowingly stated

that which was false,” and his false statement was clearly

material, his actions were not criminal because he merely

intended to satisfy the debt, not to “defraud” the debtor. Id.,

at 355, 173 Eng. Rep., at 158. When facing similar facts, a

New York court later remarked that “it is difficult to see”

how a victim “would be injured” when he is merely

“cheated” into paying what he owed. People v. Thomas, 3

Hill 169, 170 (N. Y. Sup. Ct. 1842); accord, People v. Baker,

96 N. Y. 340, 347–348 (1884); People v. Wakely, 62 Mich.

297, 300–303, 28 N. W. 871, 872–873 (1886).

Contemporary examples under the federal wire-fraud

statute illustrate the point, too. Imagine a bulk-mail com-

Cite as: 605 U. S. ____ (2025) 5

Opinion of GORSUCH, J.

pany promises that it will use a “high-rate” service to de-

liver its customers’ products, but the company actually

makes the deliveries “to the appropriate destination in a

timely fashion” using a cheaper service. United States v.

Starr, 816 F. 2d 94, 99–100 (CA2 1987). Doubtless, the

company’s misrepresentations cause its customers to part

with their money. Even so, as the Second Circuit has rec-

ognized, the company’s lies do not produce an injury be-

cause no “discrepancy [exists] between benefits ‘reasonably

anticipated’ and actual benefits received.” Id., at 99; accord,

United States v. Regent Office Supply Co., 421 F. 2d 1174,

1179–1180 (1970). Or suppose an applicant fibs on his re-

sume about satisfying a condition of employment. He lands

the job and he completes the work exactly as promised. The

employee’s lie induces the company to part with money (his

wages). But, as the D. C. Circuit has held, the employee’s

lies do not injure the employer, because his “untruths do

not deprive the employer of the benefit of its bargain.”

United States v. Guertin, 67 F. 4th 445, 451 (2023); accord,

United States v. Takhalov, 827 F. 3d 1307, 1313–1319

(CA11 2016); United States v. Shellef, 507 F. 3d 82, 108

(CA2 2007).2

——————

2 Of course, the federal wire-fraud statute prohibits a “ ‘scheme to de-

fraud,’ rather than [a] completed fraud,” so a defendant need not follow

through on his plan to commit an offense. Neder v. United States, 527

U. S. 1, 25 (1999). But, as the cases above recognize, the injury element

matters all the same. Modeled as it is after a common-law attempt of-

fense, the wire-fraud statute requires proof of a “specific intent to commit

the unlawful act.” Braxton v. United States, 500 U. S. 344, 351, n. (1991);

see United States v. Coffman, 94 F. 3d 330, 333 (CA7 1996) (wire fraud

“punishes . . . the attempt to defraud”). So the government must prove

that a defendant’s intended scheme, if completed, would have left the

victim without the benefit of the parties’ bargain, for “it is not a criminal

attempt to try to do what the criminal law does not forbid you to do.” Id.,

at 333. The same goes for other elements of traditional fraud, like rea-

sonable reliance and causation. Though the government need not prove

actual reliance or causation to secure a wire-fraud conviction, Neder, 527

U. S., at 25, it must prove that the defendant intended those results, see

6 KOUSISIS v. UNITED STATES

Opinion of GORSUCH, J.

As all these examples highlight, the traditional benefit-

of-the-bargain injury rule is not some vestigial limb. It

plays an important role in separating mere lies from crimi-

nal frauds and, in that way, reducing the risk of frivolous

prosecutions. Just ask yourself, if a “putative victim of wire

fraud got exactly what he paid for, how exactly is he a vic-

tim at all?” United States v. Porat, 76 F. 4th 213, 227 (CA3

2023) (Krause, J., concurring). And what business is it of

the government’s to punish victimless lies with prison time

anyway?

The Court’s footnote commentary thus is no small thing.

By defying the traditional common-law rule, it risks turn-

ing prosecutors and courts into morality police with a com-

mission to prosecute and punish harmless lies. Indeed, un-

der the Court’s novel approach, it is hard to see what would

save our babysitter from a federal wire-fraud conviction.

Just consider: She intentionally lied. She did so using the

wires. Her lie is material because it would matter to rea-

sonable parents that someone working in their home with

their children has a felony burglary conviction. The parents

reasonably relied on the babysitter’s insistence that her rec-

ord was clean. And they parted with money because of her

lie. On the Court’s account, all the elements of the offense

seem to be satisfied, and the babysitter’s fleeting misstate-

ment may cost her up to 20 years in prison. The only way

to ensure cases like our babysitter’s don’t become the do-

main of federal prosecutors and courts is to recognize what

the common law has long recognized: Lies without injury

are not criminal frauds.

II

The Court’s footnote grapples with none of these difficul-

ties. Instead, to support its suggestion that the loss of

——————

ALI, Model Penal Code §5.01, Comment 2, p. 303 (1985) (attempt re-

quires that a “defendant manifests a purpose . . . to cause the type of

result that is forbidden by the criminal law”).

Cite as: 605 U. S. ____ (2025) 7

Opinion of GORSUCH, J.

money or property is always enough to establish an injury,

the Court relies primarily on a decision from the Supreme

Court of Pennsylvania. Ante, at 11–12, n. 5 (citing Williams

v. Kerr, 152 Pa. 560, 565, 25 A. 618, 619 (1893)). But even

that case does not stand for anything like the rule the Court

imagines.

In truth, Williams had no occasion to depart from the tra-

ditional injury rule. There, the defendant induced his vic-

tims to sell half their land by misrepresenting his plans to

improve the lot—plans that (if true) would have “greatly

enhance[d] the value” of the victims’ remaining share. Id.,

at 564, 25 A., at 619. Because the planned improvements

turned out to be a fiction, the defendant failed to deliver

what the sellers bargained for. Notably, too, Williams’s ar-

ticulation of the injury rule is consistent with the tradi-

tional test. The court did not say that obtaining money or

property by means of a material misrepresentation is al-

ways enough. Instead, the court suggested, it would be an

injury to obtain money or property upon “terms” that the

victim would not otherwise “accept.” Ibid. (emphasis

added). And lying to get more favorable terms will often

involve depriving a victim of “what was pretended and what

he bargained for.” Casperson, 71 Utah, at 75, 262 P., at 296.

The Court’s remaining common-law authorities are no

more helpful to its cause. Neither MacLaren v. Cochran, 44

Minn. 255, 258, 46 N. W. 408, 409 (1890), nor Carlisle v.

State, 76 Ala. 75, 77 (1884), mentions the money-or-property

injury requirement the Court adopts. Meanwhile, the

Court’s treatise supports a discussion of fraud’s injury ele-

ment by citing a case endorsing the traditional rule that

those who “obtai[n] all . . . they expected to obtain” are “not

cheated or defrauded.” State v. Matthews, 44 Kan. 596, 606,

25 P. 36, 40 (1890) (cited in 1 E. McClain, Criminal Law

8 KOUSISIS v. UNITED STATES

Opinion of GORSUCH, J.

§680, p. 686 (1897)).3

Not only do the Court’s common-law authorities fail to

support its view about the nature of fraud’s injury require-

ment. Nothing in the text of the wire-fraud statute does

either. That statute prohibits using the wires to carry out

“any scheme or artifice to defraud . . . for obtaining money

or property.” 18 U. S. C. §1343. As this Court has recog-

nized, that language means a prosecutor must prove (1) the

defendant “engage[d] in a ‘scheme or artifice to defraud,’ ”

and (2) the “ ‘object of the fraud [was] “money or property”

in the victim’s hands.’ ” Pasquantino v. United States, 544

U. S. 349, 355 (2005) (quoting Cleveland v. United States,

531 U. S. 12, 26 (2000) (alteration omitted)). So even when

a prosecutor is able to show that the defendant sought to

obtain money or property, he must still make the further

showing that the defendant intended a “scheme or artifice

to defraud”—a phrase that everyone agrees imports the tra-

ditional elements of common-law fraud. See ante, at 8, 11.

And, as we have seen, those elements include an injury re-

quirement that is not satisfied when a putative victim re-

ceives the benefit of his bargain.

Left without common-law authority or statutory text to

support its view, the Court seems to suggest that discarding

the traditional injury rule at least might make for good pol-

icy. Though common-law courts have long asked whether

——————

3 Without common-law authority to support its view, the Court resorts

to disparaging contrary authority on the ground that some common-law

cases discuss the benefit-of-the-bargain rule as a product of fraud’s intent

or falsity elements, not its injury element. See ante, at 13, n. 6. But

what does that prove? Only that common-law courts relied on various

elements to enforce the benefit-of-the-bargain rule—not that courts re-

jected the requirement. It is unsurprising, too, that some courts consid-

ered injury in connection with the defendant’s “intent to defraud.” Ibid.

After all, fraud can be prosecuted as an inchoate offense. So the govern-

ment may secure a conviction by showing that a defendant intended all

the elements of the completed crime, including injury and its benefit-of-

the-bargain rule. Supra, at 5, n. 2; Injury as an Element 511, and n. 7.

Cite as: 605 U. S. ____ (2025) 9

Opinion of GORSUCH, J.

the defendant “ ‘delivered something different from what

was promised,’ ” the argument appears to go, that test may

be just too hard for today’s judges. Ante, at 14. Instead, we

are told, fraud’s “materiality” element supplies a more

“principled” and equally satisfactory way to distinguish

mere lies from criminal fraud. Ante, at 15.

But that is no answer at all. A judicial preference for

“principled” rules cannot displace what is and has long been

the law. When we look to the old soil of the common law for

guidance, we have no license to plow over what we find

there. Nor is the Court correct that fraud’s materiality ele-

ment can shoulder all the work traditionally performed by

its injury requirement. As this Court describes it, fraud’s

materiality element usually asks “if a reasonable person

would attach importance to [the defendant’s lie] in deciding

how to proceed.” Ibid. (citing Universal Health Services,

Inc. v. United States ex rel. Escobar, 579 U. S. 176, 193

(2016)). And, as the examples above illustrate, our fallen

world is filled with lies, even material ones, that do not war-

rant the attention of criminal authorities: creditors who lie

to recover their debts from evasive debtors, employees who

fib about their credentials to get jobs, and even babysitters

who misrepresent their pasts. In all of those cases, a rea-

sonable person would attach significance to the defendant’s

lie in deciding whether and how to proceed. In all of those

cases, too, the lie is intentional, induces reasonable reli-

ance, and causes someone to part with their money or prop-

erty. Without the traditional injury requirement, every one

of those cases gets swept into the prosecutor’s dragnet.

Even taken on its own terms, the Court’s argument is

misguided. The common-law materiality element is no

more “principled” than the traditional injury rule. Ante, at

15. Yes, the traditional injury rule may require courts to

assess whether the defendant delivered what he promised,

and answering that question will not always be simple. See

10 KOUSISIS v. UNITED STATES

Opinion of GORSUCH, J.

ibid. But the same holds true when it comes to the materi-

ality element, where courts must decide whether a defend-

ant misrepresented a “minor” (immaterial) term or an “es-

sen[tial]” (material) one. Universal Health Services, Inc.,

579 U. S., at 193–194, and n. 5.

Take a prominent example in the Court’s opinion. Sup-

pose a defendant promises to deliver a “ ‘horse called the

Charley.’ ” Ante, at 15 (quoting State v. Mills, 17 Me. 211,

212 (1840)). That representation would be material if the

parties’ dealings reveal that a reasonable person in the

buyer’s shoes would care about the specific identity of the

horse. But if those dealings indicate that, in the circum-

stances of a particular industry or transaction, a buyer

would have been interested only in a horse of a particular

kind and quality, the representation would not be material.

When it comes to fraud’s materiality element, no less than

when it comes to fraud’s injury element, details can matter,

sometimes difficult lines must be drawn, and in drawing

them courts may have to attend carefully to the circum-

stances surrounding the parties’ dealing.4

If there is any good news when it comes to the Court’s

footnote, it may be this: That digression is dicta addressing

——————

4 Nor, contrary to the Court’s suggestion, is materiality a better option

because it offers an “objective” standard. Ante, at 15, n. 7. The tradi-

tional test for injury, too, is an objective inquiry, asking whether “there

exists a ‘discrepancy between benefits reasonably anticipated’ ” based on

all the parties dealings and the “actual benefits which the defendant de-

livered, or intended to deliver.” United States v. Starr, 816 F. 2d 94, 98

(CA2 1987) (quoting United States v. Regent Office Supply Co., 421 F. 2d

1174, 1182 (CA2 1970); emphasis added). Interestingly, the Court’s pro-

posal to cast aside fraud’s traditional injury rule and to rely instead on

fraud’s materiality requirement is just the opposite of a proposal offered

by the drafters of the Model Penal Code. They suggested abandoning the

common-law materiality requirement altogether, even as they hewed to

the traditional injury rule that it is not a criminal fraud to give a defend-

ant “exactly what he bargained for.” ALI, Model Penal Code §223.3,

Comment †, pp. 180–181, 194 (1980). The Court’s footnote does not

pause to address why it would have us do exactly the reverse.

Cite as: 605 U. S. ____ (2025) 11

Opinion of GORSUCH, J.

a question well “beyond the case.” Cohens v. Virginia, 6

Wheat. 264, 399–400 (1821). Exactly nothing before us to-

day turns on whether wire fraud’s injury requirement de-

mands proof that the victim did not receive the benefit of

his bargain or, instead, proof only that he parted with

money or property. Nor is adopting one rule over another a

necessary step toward the Court’s holding that “pecuniary

loss” is not an “element of fraud.” Ante, at 12, n. 5.

Just ask yourself: If the Court deleted its footnote, or re-

versed its position and endorsed the traditional injury rule,

would its conclusion on economic loss be any different? Of

course not. Under either view, Mr. Kousisis loses. He loses

because his lies induced the Pennsylvania Department of

Transportation to part with money when it paid him for the

building projects in question. And he loses because the de-

partment did not receive what it bargained for in return:

projects completed using “ ‘socially and economically disad-

vantaged’ ” firms. Ante, at 2; see also ante, at 4. Because

Mr. Kousisis committed wire fraud under both the tradi-

tional injury rule and the Court’s novel one, the Court’s

“throwaway footnot[e]” makes no difference. Royal Canin

U. S. A., Inc. v. Wullschleger, 604 U. S. 22, 42–43 (2025).

Try as it might, the Court cannot “transmute dictum into

a decision by waving a wand and uttering the word ‘hold.’ ”

United States v. Rubin, 609 F. 2d 51, 69, n. 2 (CA2 1979)

(Friendly, J., concurring). And nothing in today’s decision

can bind this Court in a future case where the difference

between the two rules actually matters. See Seminole Tribe

of Fla. v. Florida, 517 U. S. 44, 66 (1996); Loper Bright En-

terprises v. Raimondo, 603 U. S. 369, 426 (2024) (GORSUCH,

J., concurring).

*

Over centuries of experience, common-law courts devel-

oped a variety of tools to sort venial lies from criminal

frauds. In a brief and unfortunate diversion in an otherwise

12 KOUSISIS v. UNITED STATES

Opinion of GORSUCH, J.

sound opinion, the Court casts doubt on whether one of

those tools still applies under the federal wire-fraud stat-

ute. In the process, the Court needlessly risks turning the

federal wire-fraud statute into a weapon for punishing vic-

timless crimes. I can only trust that future courts will rec-

ognize that aside for what it is—unsound dicta.

Cite as: 605 U. S. ____ (2025) 1

SOTOMAYOR, J., concurring in judgment

SUPREME COURT OF THE UNITED STATES

_________________

No. 23–909

_________________

STAMATIOS KOUSISIS, ET AL., PETITIONERS v.

UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT

[May 22, 2025]

JUSTICE SOTOMAYOR, concurring in the judgment.

The Court today rightly rejects petitioners’ request to

graft an economic-loss requirement onto the federal wire

fraud statute. When a defendant tricks a victim out of their

money by promising one thing and delivering something

materially different, it is no defense to say that the deliv-

ered items are of equal economic value. Statutory text,

precedent, and history mandate that conclusion, as the ma-

jority explains. See ante, at 7–16. Common sense, unsur-

prisingly, points in the same direction. A Yankees fan de-

ceived into buying Mets tickets is no less defrauded simply

because the Mets tickets happen to be worth the same

amount as the promised Yankees ones. That straightfor-

ward conclusion is all that is necessary to resolve this case,

and I would go no further. To the extent the majority ap-

pears to speak more broadly, I part ways from its approach.

I

As the majority explains, this case turns on the wire

fraud statute’s property requirement, which limits the stat-

ute’s reach to schemes “to defraud, or for obtaining money

or property.” 18 U. S. C. §1343. Although that phrase uses

“disjunctive language,” the Court has construed it as a “uni-

tary whole.” Kelly v. United States, 590 U. S. 391, 398

2 KOUSISIS v. UNITED STATES

SOTOMAYOR, J., concurring in judgment

(2020) (citing §1343). That is because the “ ‘common under-

standing’ of the words ‘to defraud’ when the statute was en-

acted referred ‘to wronging one in his property rights.’ ” Ci-

minelli v. United States, 598 U. S. 306, 312 (2023) (quoting

Cleveland v. United States, 531 U. S. 12, 19 (2000)). Accord-

ingly, even before Congress amended the statute to add the

phrase “or for obtaining money or property,” the statute

criminalized “only schemes to deprive people of traditional

property interests.” Ciminelli, 598 U. S., at 309; see also

Cleveland, 531 U. S., at 18–19 (recounting §1343’s amend-

ment history).

Here, petitioners convinced the Pennsylvania Depart-

ment of Transportation (PennDOT) to hand over tens of

millions of dollars by lying about the nature of what they

were selling. Petitioners promised to provide PennDOT

with repair services that complied with the U. S. Depart-

ment of Transportation’s Disadvantaged Business Enter-

prise (DBE) program. See 49 CFR §26.21 (2024). They rep-

resented to PennDOT that a qualified disadvantaged

business would provide painting services for the restoration

projects, as required by PennDOT’s federal grant, and they

expressly memorialized that requirement as a “ ‘material’ ”

term in their contracts. Ante, at 3 (majority opinion; quot-

ing App. 114, 175). Yet petitioners planned all along to

have nonqualified companies do the work, while the quali-

fied disadvantaged business that they promised to work

with served as a mere pass-through. Ante, at 3–4 (majority

opinion). To put it simply, petitioners devised a scheme to

trick PennDOT out of its money by promising one thing and

delivering something materially different.

Against that backdrop, petitioners’ only viable theory as

to why PennDOT suffered no property loss hinges on their

economic-loss theory. No property harm occurs for pur-

poses of §1343, they argue, if the victim suffers no net pe-

cuniary loss. See Reply Brief 2, 8. According to petitioners,

Cite as: 605 U. S. ____ (2025) 3

SOTOMAYOR, J., concurring in judgment

that makes all the difference here because the repair ser-

vices petitioners provided to PennDOT were of equal mon-

etary value. Id., at 8.

Rejecting petitioners’ economic-loss theory therefore re-

solves this case, and I see no reason to go further. The

Court, after all, granted certiorari to address circuit divi-

sion on petitioners’ proposed economic-loss requirement,

see ante, at 4–5 (majority opinion), and that is the question

presented by the facts of this case.

The Court therefore has no reason to opine on a class of

fraudulent-inducement cases distinct from this one: those

in which a defendant provides exactly the goods or services

that they promised to deliver, but lies in other ways to in-

duce the transaction. Cf. ante, at 2, 11 (GORSUCH, J., con-

curring in part and concurring in judgment). A wide array

of everyday transactional conduct might fall into that cate-

gory. Consider, for instance, a babysitter who lands a job

by fibbing about how she will use the money (for college sav-

ings, rather than a spring break trip), but otherwise fully

and satisfactorily takes care of the child; a used car sales-

man who closes a deal by falsely claiming another buyer is

coming to look at the car later that day, while truthfully

disclosing all the pertinent details about the car; or a pro-

spective housing developer who beats out competing bid-

ders by lying about wanting to raise a family in the home,

but pays the full amount of his bid. On the Government’s

view, each of those cases may well give rise to federal fraud

liability, punishable by up to 20 years in prison, so long as

the jury deems the lie “material.” See Tr. of Oral Arg. 64–

66; Brief for United States 44; 18 U. S. C. §1343.

Future cases presenting such fact patterns will require

the Court to confront the outer limits of the federal fraud

statute’s reach and to decide what satisfies its materiality

element. Resolving this case, however, requires no such un-

dertaking. To the extent the majority discusses the viabil-

ity of the Government’s fraudulent-inducement theory

4 KOUSISIS v. UNITED STATES

SOTOMAYOR, J., concurring in judgment

more broadly, see, e.g., ante, at 6–8, 11–12, n. 5, I do not

endorse its approach. That discussion is not essential to the

Court’s resolution of the dispute before us, and I see no rea-

son to proceed more broadly than necessary.

II

This case presents only a narrow question in part because

petitioners have not contested the materiality of their mis-

representations. See ante, at 16 (majority opinion). That

concession makes good sense. There can be no real debate

that petitioners’ misstatements were material. Contra,

ante, at 4–11 (THOMAS, J., concurring).

A

Recall that the parties presented two competing articula-

tions of the materiality standard for the federal wire fraud

statute. See ante, at 16 (majority opinion). Petitioners di-

rect the Court to the “traditional” common-law test for ma-

teriality, Reply Brief 18, under which a representation is

material if “ ‘a reasonable man would attach importance to

its existence or nonexistence in determining his choice of

action in the transaction in question,’ ” or “ ‘the maker of the

representation knows or has reason to know that its recipi-

ent regards or is likely to regard the matter as important in

determining his choice of action,’ ” Neder v. United States,

527 U. S. 1, 22, n. 5 (1999) (quoting Restatement (Second)

of Torts §538 (1977)). Petitioners assert that, under their

formulation, representations need “ ‘not go to [the] essence’ ”

of the transaction to qualify as material. Reply Brief 18

(quoting Restatement (Second) of Torts §551(2)(e), Com-

ment j). Counterintuitively, it is the Government that pro-

poses a more demanding standard. It asserts that misstate-

ments are material only if they go to the very “ ‘essence of

the bargain’ ” at issue. Brief for United States 44. That

standard stems from Universal Health Services, Inc. v.

United States ex rel. Escobar, 579 U. S. 176 (2016), which

Cite as: 605 U. S. ____ (2025) 5

SOTOMAYOR, J., concurring in judgment

discussed materiality under the False Claims Act. See id.,

at 193, n. 5.

The Court need not resolve this dispute to know that pe-

titioners correctly conceded materiality: Even under the

more demanding “essence of the bargain” test, petitioners’

misstatements qualify. Starting with the contract itself,

PennDOT expressly made compliance with federal DBE

regulations a “material” term. See App. 114, 175. That was

no boilerplate designation. Out of the 17 warranties set

forth in the signed documents, only the DBE requirement

expressly provided that “[f]ailure by the Contractor to carry

out these requirements is a material breach of this contract,

which may result in the termination of this contract.” Ibid.

PennDOT, moreover, dedicated an entire phase of the con-

tract bidding process to confirming that its prospective con-

tractor had identified a qualified DBE partner who would

provide painting services. See 3 App. in No. 19–3679 etc.

(CA3), pp. 763–765; 82 F. 4th 230, 234 (CA3 2023). Peti-

tioners also had to submit documentation throughout the

projects’ duration to demonstrate continued compliance

with the DBE requirement. See id., at 234.

What is more, PennDOT could not have proceeded with

the projects as funded if it had not mandated contractor

compliance with the DBE requirement. Federal grants ac-

counted for a significant portion of PennDOT’s funding for

each project, and those grants were conditioned on DBE

compliance. The contracts’ DBE requirement thus went di-

rectly to the viability of the projects themselves, and by ex-

tension, to the “ ‘very essence of the bargain.’ ” Universal

Health Services, 579 U. S., at 193–194, n. 5 (quoting Junius

Constr. Corp. v. Cohen, 257 N. Y. 393, 400, 178 N. E. 672,

674 (1931)); cf. 579 U. S., at 194 (recognizing materiality

where “ ‘[t]he government’s money would never have been

placed in the joint fund for payment to respondents had its

agents known the bids were collusive’ ” (quoting United

States ex rel. Marcus v. Hess, 317 U. S. 537, 543 (1943)).

6 KOUSISIS v. UNITED STATES

SOTOMAYOR, J., concurring in judgment

If that were not already enough, PennDOT risked legal

sanction if it failed to administer the DBE program in good

faith. See 49 CFR §§26.101, 26.107; 2 App. in No. 19–3679

etc., at 305 (“If [a grant recipient] fail[s] to comply with any

requirement mentioned in this rule,” including the DBE re-

quirement, “they could be subject to formal enforcement ac-

tion or program sanctions such as suspension or termina-

tion of federal funds or refusal to approve projects, grants,

or contracts until those deficiencies are remedied”); id., at

290 (“[I]f you fail to operate your program in good faith, . . .

[ y]ou will be subject to possible withholding of funds, revok-

ing of funds, or other sanctions available by the Depart-

ment”). It is implausible that compliance with the DBE re-

quirement was immaterial to PennDOT when knowledge of

petitioners’ scheme to flout those requirements would have

exposed PennDOT to risk of serious legal consequences.

See Universal Health Services, 579 U. S., at 194 (“[A]n un-

disclosed fact [is] material” where “ ‘[n]o one can say with

reason that the plaintiff would have signed this contract if

informed of the likelihood’ of the undisclosed fact” (quoting

Junius Constr. Corp., 257 N. Y., at 400, 178 N. E., at 674)).

In short, DBE compliance was no “minor or insubstan-

tial” provision tucked away in a laundry list of other re-

quirements for payment. Universal Health Services, 579

U. S., at 194. It played a critical role in PennDOT’s ability

to achieve the essential goal of the contracts: completing the

restoration projects. It featured prominently in the con-

tracts and in the bidding process itself. And petitioners

were well aware of its importance to PennDOT. After all,

they orchestrated an entire scheme to hide their noncom-

pliance. The materiality of petitioners’ misstatements is

thus hard to dispute, even under the Government’s more

demanding standard.

B

It is no answer to suggest that DBE fraud is “rampant.”

Cite as: 605 U. S. ____ (2025) 7

SOTOMAYOR, J., concurring in judgment

Ante, at 9 (THOMAS, J., concurring). “Lots of people do it”

has never been, nor should be, a defense to criminal liability

without more. No cited portion of the record, moreover,

supports the view that PennDOT “regularly pa[id con-

tracts] in full despite actual knowledge that [the relevant]

requirements were violated,” Universal Health Services,

579 U. S., at 195, or that PennDOT “assume[d] a significant

number of its contractors violate contract provisions requir-

ing DBE compliance,” ante, at 8 (THOMAS, J., concurring).

If that were true, petitioners would have had no reason to

develop an elaborate scheme to conceal their noncompli-

ance in the first place.

Generic reports from decades prior of “ ‘serious enforce-

ment and compliance problems’ ” with a federal program do

not negate the materiality of explicit contractual terms re-

quiring compliance either. Ante, at 9 (THOMAS, J., concur-

ring) (quoting Oversight Hearing on the Elimination of

Waste, Fraud, and Abuse in Mandatory Transportation

Programs before the House Committee on Transportation

and Infrastructure, 108th Cong., 1st Sess., 109 (2003)).1 We

have never suggested, let alone held, that such reports give

defendants a get-out-of-jail-free card. With good reason:

That view relies on the premise that, whenever fraud is

prevalent, no reasonable contractor can expect compliance,

even where the contract expressly deems compliance mate-

rial. To accept that premise is to turn contract law upside

——————

1 JUSTICE THOMAS appears to agree. See ante, at 9–10, n. 2. Although

his concurring opinion sets forth “reasons to think that the DBE provi-

sions did not go ‘to the very essence of the bargain’ ” to explain his “skep-

tic[ism] that petitioners’ misrepresentations were material,” ante, at 1,

6, JUSTICE THOMAS later acknowledges that his discussion of these re-

ports is intended only to suggest his “materiality analysis might apply in

different DBE-compliance prosecutions where ‘materiality is contested’ ”

and a different record is developed, ante, at 9–10, n. 2. I do not share his

view of the proper materiality analysis, but at least all agree such reports

are irrelevant in this case.

8 KOUSISIS v. UNITED STATES

SOTOMAYOR, J., concurring in judgment

down. Parties explicitly designate contractual terms as ma-

terial in order to ensure compliance, particularly where the

other party might not otherwise comply.

Petitioners would have had similar trouble contesting

materiality on the ground that, at some point in the future,

the DBE statutory scheme might be deemed unconstitu-

tional. Indeed, petitioners at no pertinent time raised a

challenge to the DBE program’s constitutionality, and the

DBE statutory scheme remains good law (as it was at the

time of petitioners’ conviction).2 It should go without saying

that the law should not provide a shield from criminal lia-

bility based upon personal and unspoken predictions of a

law’s constitutionality.

* * *

At bottom, this case presents a classic scheme to defraud:

Petitioners tricked PennDOT into paying for one thing, and

then delivered something materially different. The Court

today rightly holds that a defendant in that position may

not escape federal fraud liability by asserting the victim

nevertheless suffered no net economic loss. On that basis,

I agree with the majority’s bottom-line decision to affirm

the Third Circuit’s judgment.

——————

2 See ante, at 11, n. 3 (THOMAS, J., concurring) (indicating agreement

that, as a result, petitioners could not have raised a materiality argu-

ment on this ground).