Kousisis v. United States (605 U.S. 114, 2025)

PRELIMINARY PRINT Volume 605 U. S. Part 1 Pages 114–164 OFFICIAL REPORTS OF THE SUPREME COURT May 22, 2025 Page Proof Pending Publication REBECCA A. WOMELDORF reporter of decisions NOTICE: This preliminary print is subject to formal revision before the bound volume is published. Users 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. 114 OCTOBER TERM, 2024 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 regula- tions required contract awardees to subcontract a portion of every con- tract to a disadvantaged business enterprise. So as part of the bidding process, Kousisis falsely represented that Alpha would obtain its paint supplies from Markias, Inc., a prequalifed disadvantaged business. This was a lie. Unbeknownst to PennDOT, Kousisis arranged for Mar- kias 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 contra- dict Kousisis's prior representations, it also violated the requirement Page Proof Pending Publication that disadvantaged businesses perform a “commercially useful func- tion.” 49 CFR § 26.55(c). In the end, however, Alpha performed the painting projects to PennDOT's satisfaction and pocketed over $20 mil- lion in gross proft. 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 con- tracts under materially false pretenses. After a jury convicted Alpha 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 beneft of its bargain. So, petitioners con- tended, the Government could not prove that they had schemed to de- fraud PennDOT of “money or property” as § 1343 requires. The 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. 121–135. (a) To convict Alpha and Kousisis, the Government needed to prove that they used the wires to execute a “scheme or artifce to defraud, or Cite as: 605 U. S. 114 (2025) 115 Syllabus for obtaining money or property by means of false or fraudulent pre- tenses, representations, or promises.” § 1343. Under this Court's precedent, a defendant commits wire fraud only if he both engaged in deception 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. 121–135. (1) The text of § 1343 does not mention economic loss, let alone re- quire it. In fact, Alpha and Kousisis's conduct satisfed 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 oth- erwise, 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 New International Dictionary 1559, and money or property is no less “obtained” simply because something else is given in return. Pp. 123–124. (2) Petitioners argue that economic loss is inherent to the common- law understanding of fraud, a term that appears twice in the wire fraud Page Proof Pending Publication statute. But when Congress uses a common-law term, the presumption 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 pretenses, for exam- ple, most courts did not require the victim to show economic loss. In- stead, it was suffcient that the victim had “received property of a differ- ent 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 property—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 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. 124–129. (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 116 KOUSISIS v. UNITED STATES Syllabus promised” or the bargain “involv[ed] an item with unique qualities,” Reply Brief 15—lacks a driving principle. At the right level of specifc- ity, anything can be described as “unique” or “different from” something else. Indeed, the common law has long embraced a different stand- ard—namely, materiality—as the principled basis for distinguishing ev- eryday misstatements from actionable fraud. Today, the Court reiter- ates “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. 130–132. (b) The fraudulent-inducement theory is neither foreclosed by, nor in- consistent with, the Court's precedent. The Court has twice rejected the argument that a fraud conviction depends on economic loss, frst 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 convic- tion premised on mere interference with the State's power to regulate. No matter the underlying theory of fraud, § 1343 requires that “money or property” have been an object of the fraudster's scheme. The Page Proof Pending Publication money-or-property requirement also explains why the fraudulent- inducement 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 interests unconnected to traditional property rights.” Ciminelli, 598 U. S., at 312. If a scheme targets some kind of intangible interest—for example, a citizen's interest in “impartial government”—the fraudulent-induce- ment 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. Unlike the right-to- control theory, fraudulent inducement does not treat “mere information as the protected interest.” 598 U. S., at 315. Rather, it protects money and property. Pp. 132–134. (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 uni- verse of actionable misrepresentations. Universal Health Services, Inc. v. United States ex rel. Escobar, 579 U. S. 176, 194. And while the Cite as: 605 U. S. 114 (2025) 117 Opinion of the Court wire fraud statute is broad, it is up to Congress, if it so chooses, to change it. Pp. 134–135. 82 F. 4th 230, affrmed. Barrett, J., delivered the opinion of the Court, in which Roberts, C. J., and Thomas, Alito, Kagan, Kavanaugh, and Jackson, JJ., joined. Thomas, J., fled a concurring opinion, post, p. 135. Gorsuch, J., fled an opinion concurring in part and concurring in the judgment, post, p. 146. Sotomayor, J., fled an opinion concurring in the judgment, post, p. 157. Jeffrey L. Fisher argued the cause for petitioners. With him on the briefs were Lisa A. Mathewson, Jason Zarrow, Easha Anand, Pamela S. Karlan, Jenya Godina, and Rachel A. Chung. Deputy Solicitor General Feigin argued the cause for the United States. With him on the brief were Solicitor Gen- eral Prelogar, Principal Deputy Assistant Attorney Gen- eral Argentieri, Sopan Joshi, and Joshua K. Handell.* Page Justice Proof Pending Barrett delivered Publication the opinion of the Court. Stamatios Kousisis and the industrial-painting company he helped manage, Alpha Painting and Construction Co., se- cured 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 materials 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 certifcations to cover up their scheme. So although Alpha's paint work met *Briefs of amici curiae urging reversal were fled for the Due Process Institute by John D. Cline; for the National Association of Criminal Defense Lawyers et al. by Steven F. Molo, Joshua L. Dratel, and Eric R. Nitz; and for Moshe Porat by Alexandra A. E. Shapiro and Ted Sampsell-Jones. 118 KOUSISIS v. UNITED STATES Opinion of the Court 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 the fraudster, who often provides something in return, seeks to cause the victim net pecuniary loss. We must decide 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 affrm. I When two Philadelphia landmarks, the Girard Point Page Proof Pending Publication Bridge and the 30th Street Station, fell into disrepair, Penn- DOT began soliciting bids for their restoration. Kousisis, Alpha's project manager, submitted a bid for each project. 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, Alpha and an- other company (again operating as a joint venture) 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 Penn- DOT 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-proft small business” that is ma- Cite as: 605 U. S. 114 (2025) 119 Opinion of the Court jority owned and controlled by “one or more individuals who are both socially and economically 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 “overall goal[s]” for disadvantaged- business participation in their “DOT-assisted contracts.” §§ 26.41, 26.45(a)(1). Consistent with this rule, PennDOT required that bidders for the Girard Point and 30th Street projects commit to sub- contracting a percentage of the total contract amount—six and seven percent, respectively—to a disadvantaged busi- ness. Failing to comply with this requirement would consti- tute “a material breach” and could “result in [contract] termi- nation.” App. 114, 175. Accordingly, as part of the bidding process, Kousisis represented that Alpha would acquire ap- proximately $6.4 million in painting supplies from Markias, Inc., a prequalifed disadvantaged business. This was a lie. As later memorialized in a commitment Page Proof Pending Publication letter, Alpha and Kousisis concocted a scheme in which Mar- kias would function as a mere “pass-through” entity. The scheme operated as follows: Kousisis arranged for Alpha's actual paint suppliers, with whom he negotiated directly, 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 infated 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 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, 120 KOUSISIS v. UNITED STATES Opinion of the Court Kousisis's scheme initially went undetected. As the proj- ects progressed, he falsely reported qualifying payments to Markias. PennDOT, satisfed with Alpha's paint and repair work, paid it accordingly. By the time the last coat of paint had dried, Alpha had turned a gross proft 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 judgment of acquittal, arguing that because their paintwork met PennDOT's expectations, PennDOT had received the full economic beneft of its bargain. Thus, notwithstanding the lack of disadvantaged-business participation, the Govern- ment could not prove that they had schemed to defraud PennDOT of “money or property” as the federal wire fraud Page Proof Pending Publication statute requires. § 1343. The District Court rejected this argument, and the Third Circuit affrmed 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 targeted PennDOT's money, because the agency paid for services— construction performed with materials supplied by a [disad- vantaged business]—which it did not receive”). “Put sim- ply,” 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 vic- tim net pecuniary loss. Several circuits, now including the or project through which funds are passed to obtain the appearance” of disadvantaged-business “participation.” § 26.55(c)(2). Cite as: 605 U. S. 114 (2025) 121 Opinion of the Court 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 States v. Sadler, 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. 1030 (2024). II To convict Alpha and Kousisis, the Government needed to prove that they used the wires to execute a “scheme or arti- fce to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or prom- Page Proof Pending Publication ises.” 18 U. S. C. § 1343. Despite the use of the disjunctive “or,” we have declined to interpret § 1343 as establishing al- ternative pathways to a conviction. Instead, reading the two clauses together, we have held that “the money-or- property requirement of the latter phrase” operates as a lim- itation 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 decep- tion' ” 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 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). 122 KOUSISIS v. UNITED STATES Opinion of the Court 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 de- prive another of “intangible interests unconnected to prop- erty.” Ciminelli, 598 U. S., at 315; see also McNally, 483 U. S., at 356.3 And in all cases, because money or property must be an object of the defendant's fraud, the traditional 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 an- other: A federal fraud conviction cannot stand, they argue, unless the defendant sought to hurt the victim's bottom line. Page Proof Pending Publication Brief for Petitioners 2; Reply Brief 8. Yet the theory 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 sup- ports liability for federal fraud anytime a defendant “ `us[es] falsehoods to induce a victim to enter into a transaction.' ” Brief for Petitioners 29 (quoting Brief in Opposition 9). In these situations, the defendant need not—and given the re- ciprocal nature of most transactions, often will not—aim to infict 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 theory is consistent with both the text of the wire fraud statute and 3 Responding to our decision in McNally, Congress amended the statute 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 (describ- ing this history). That exception is irrelevant here. Cite as: 605 U. S. 114 (2025) 123 Opinion of the Court our precedent interpreting it. We therefore reject petition- ers' proposed economic-loss requirement. 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 sat- isfes each of these statutory elements. Under the theory, 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. Page Proof Pending Publication 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”—frst 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 New International Dictionary 1559 (2002). A thing is no less “obtained” simply because some- thing else is simultaneously given in return. An art collec- 124 KOUSISIS v. UNITED STATES Opinion of the Court tor who acquires a rare sculpture can rightfully say that she “obtained” it, notwithstanding the six-fgure price tag. And because the meaning of “obtain” does not turn on the value of 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 economic 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,” regardless of whether he seeks to leave the victim economically worse off. A conviction premised on a fraudulent inducement thus com- ports 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 Page Proof Pending Publication wire fraud statute. § 1343 (a “scheme or artifce 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 paradigmatic exam- ple 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 mean- ing.' ” Neder, 527 U. S., at 21; Kemp v. United States, 596 U. S. 528, 539 (2022). So to show that economic loss is neces- sary to securing a federal fraud conviction, Alpha and Kousisis must show that such loss was “widely accepted” as Cite as: 605 U. S. 114 (2025) 125 Opinion of the Court a component of common-law fraud. Morissette v. United States, 342 U. S. 246, 263 (1952). They cannot. At common law, “fraud” was a term with expansive reach. Rather than settle on a single form of liability, courts recog- nized at least three, and the particular elements and reme- dies turned on the nature of the plaintiff's alleged injury. 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 provided at least three avenues for relief: PennDOT could (1) seek to rescind the contracts; (2) refer the matter for indictment 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 con- tracts, most courts would historically have permitted it to Page Proof Pending Publication 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 con- dition 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 rescis- sion simply because Alpha and Kousisis had tricked Penn- DOT 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 dollars and cents to have cancelation or rescission of the contract and note for misrep- resentations”); 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 126 KOUSISIS v. UNITED STATES Opinion of the Court Law Dictionary fame) many “decisions repudiate[d] alto- gether [a] rule requiring a showing of actual damage.” 1 H. Black, Rescission of Contracts 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] immate- rial that goods given in an exchange secured by false pre- tenses were equal in value to those obtained.” 1 E. Mc- Clain, Criminal Law § 680, p. 686 (1897). Thus, if someone Page Proof Pending Publication 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 plain- tiff 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 confrms that the old-soil principle does not apply. Kemp v. United States, 596 U. S. 528, 539 (2022). Cite as: 605 U. S. 114 (2025) 127 Opinion of the Court called by that name.” Ibid. (syllabus). Persuaded, the buyer exchanged his “colt and fve 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 stat- ute. Id., at 218 (majority opinion). Obtaining a conviction on false pretenses required proving simply “that any one of the pretences [sic] was false, and that the injured 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 injury.” Smith v. Richards, 13 Pet. 26, 39 (1839); see also Clarke v. White, Page Proof Pending Publication 12 Pet. 178, 196 (1838) (“[A] mere fraudulent intent, unac- companied by any injurious act, is not the subject of judicial cognizance” (emphasis added)). But petitioners beg the question by assuming that economic loss alone could satisfy this common-law “injury” requirement. As the cases and treatises discussed above confrm, it was the deception- induced deprivation of property—not economic loss—that common-law courts generally deemed injurious.5 See Still- 5 Justice Gorsuch understands us to have “spurn[ed] fraud's historic injury rule.” Post, at 147 (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.” Post, at 148. But as the Supreme 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 other- wise 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. Cochran, 44 Minn. 255, 258, 46 N. W. 408, 410 (1890) (“If a party is induced to enter into a contract by fraudulent representations as to a fact which he deems 128 KOUSISIS v. UNITED STATES Opinion of the Court well v. Rankin, 55 Mont. 130, 135, 174 P. 186, 187 (1918) (Courts “do not concern themselves with wrongs which do not produce injury; but `injury' and `pecuniary 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 modifed facts introduced above, PennDOT could not have brought a tort claim for deceit un- less 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 process at signifcant expense.) Regardless, cases involving deceit are largely inapposite Page Proof Pending Publication 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 “sound[ed] in damage” and thus was designed to compensate a plaintiff for her economic loss. United States v. Dunn, 268 U. S. 121, 131 (1925); see G. McCleary, Damage as Requisite 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 inficted, `by any false pretense or token,' by which one person `obtains from another any money or other personal property,' is the decep- tion which imposes on the confdence of that other”); 1 E. McClain, Crimi- nal 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 defnition mere “dicta.” Post, at 156 (opinion of Gor- such, 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 defendant has induced the deprivation of money or property under materially false pretenses. Cite as: 605 U. S. 114 (2025) 129 Opinion of the Court 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 misrepresen- tation”). So it is no surprise that courts required deceit vic- tims to “prove damage to establish a right to recover.” Dunn, 268 U. S., at 131. To summarize, then, common-law courts did not uniformly condition an action sounding in fraud on the plaintiff's ability to prove economic loss. More specifcally, if the action was one for rescission or a prosecution for false pretenses, the plaintiff's required “injury” ordinarily need not be fnancial. That sounds the death knell for Alpha and Kousisis's reliance on the common law. The old-soil principle 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 prosecution.” 544 U. S. 349, Page Proof Pending Publication 359–360 (2005). So too here: The common law did not estab- lish 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 149–150 (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. Wil- liams, 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 de- fraud); 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 defne `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 appeals. See post, at 150 (opinion concurring in part and concurring in judgment). But because these cases postdate the enactment of the wire fraud statute (many by several decades), any rule they articulate—even assuming it is 130 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 acknowl- edge, if a plaintiff was “delivered something different from what was promised”—even something of equivalent value— or if the bargain “involv[ed] an item with unique qualities,” then “failing to deliver as promised might constitute prop- erty fraud.” Reply Brief 15. When pressed at oral argu- ment, petitioners referred to these scenarios as “the excep- tion.” Tr. of Oral Arg. 10. But a few examples reveal just how easily such an “exception” swallows the rule. If some- one 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 delivers “oranges.” Reply Brief 15. But if these two examples ft the exception, why not a heap of coal worth a million dollars Page Proof Pending Publication 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 gov- ernment demanded a disadvantaged one? Petitioners offer no principled way to draw the line. And there is none, because at the right level of specifcity, 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 specifc of those descriptions, “the horse 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. a coherent one—cannot possibly satisfy the old-soil principle. Thus, Jus- tice 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. 114 (2025) 131 Opinion of the Court Tellingly, Alpha and Kousisis identify no source of author- ity that supports treating uniqueness as some kind of excep- tion to the no-loss-required rule. That is probably because the common law has long embraced a different standard— namely, materiality—as the principled basis for distinguish- ing 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 Serv- ices, 579 U. S., at 193 (internal quotation marks omitted; al- teration in original). Resembling a but-for standard, mate- riality asks whether the misrepresentation “constitut[ed] an inducement or motive” to enter into a transaction. Smith, 13 Pet., at 39. Or, as we explained in Universal Health Services, a misrepresentation is material if a reasonable per- son would attach importance to it in deciding how to proceed, or if the defendant knew (or should have known) that the recipient would likely deem it important. 579 U. S., at 193 Page Proof Pending Publication (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 Brief 18–21. The Government, by contrast, proposes an essence-of-the-bargain test, under which a misrepresentation is material only if it goes “ `to the very essence' ” of the par- ties' “ `bargain.' ” Universal Health Services, 579 U. S., at 7 While Justice Gorsuch is right to note that assessing whether a mis- representation is material “will not always be simple,” post, at 155 (opinion concurring in part and concurring in judgment), he overlooks that “materi- ality 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 151 (opinion of Gorsuch, J.) (emphasis added). 132 KOUSISIS v. UNITED STATES Opinion of the Court 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 statutes. 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 frst in Carpenter v. United States, a case in which the defendants had repeatedly leaked the contents of a newspaper's investment column. 484 U. S. Page Proof Pending Publication 19, 23 (1987). Although the scheme did not cause the news- paper “monetary loss,” it was suffcient, 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 affrmed a conviction under the bank fraud statute even though “no bank involved in the scheme” had “suffered any monetary loss.” 580 U. S. 63, 67 (2016). The statute, we explained, “demands neither a showing of ulti- mate fnancial loss nor a showing of intent to cause fnancial loss.” Ibid. Still, Alpha and Kousisis contend that the fraudulent- inducement theory is at odds with other aspects of our prece- dent. First, they argue that it permits a fraud conviction premised on mere interference with “the State's `sovereign 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 Cite as: 605 U. S. 114 (2025) 133 Opinion of the Court 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 suffcient 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, undermin- ing the Government's regulatory interests is merely “an inci- dental (even if foreseen) byproduct” of obtaining 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 Penn- DOT's disadvantaged-business initiative. Such a result was downstream of their “object” to line their pockets. Ibid.; Page Proof Pending Publication see also 82 F. 4th, at 240. The money-or-property requirement also explains why the fraudulent-inducement theory does not, as petitioners main- tain, “collapse Congress's distinction” 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. Brief for Petitioners 27. Because these latter statutes are not limited to schemes to “obtai[n] money or property,” they ex- tend 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 offcial” to obtain entry into the United States). Thus, fraudulent inducement 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 traditional 134 KOUSISIS v. UNITED STATES Opinion of the Court property rights.” Ciminelli, 598 U. S., at 312. As already discussed, a defendant commits wire fraud only if his scheme “aimed to deprive” the victim of a traditional property inter- est. 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 gov- ernment”—the fraudulent-inducement theory is inapplicable. McNally, 483 U. S., at 355. Finally, the fraudulent-inducement theory is not a “repack- ag[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 defnition of “property,” a defendant vio- lates § 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- Page Proof Pending Publication erty interes[t].” Id., at 316. Unlike the right-to-control theory, fraudulent inducement does not treat “mere information as the protected interest.” 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 affrm Ciminelli's con- viction on an alternative ground—namely, the fraudulent- inducement theory—we declined to do so because it would have required us “to assume not only the function of a court of frst 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., concurring) (observing that the Court had not addressed “the Government'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. Cite as: 605 U. S. 114 (2025) 135 Thomas, J., concurring “Under the theory,” they say, “every intentional misrepre- sentation designed to induce someone to transact in property would constitute property fraud.” Brief for Petitioners 40. In their view, this result threatens fair notice and, by en- croaching into States' police powers, runs headlong into prin- ciples 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 Page Proof Pending Publication 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 enacted 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, we affrm it. It is so ordered. Justice Thomas, concurring. Petitioners Stamatios Kousisis and Alpha Painting and Construction Co., Inc., ask the Court to add an economic- 136 KOUSISIS v. UNITED STATES Thomas, J., concurring 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 “material,” and thus actionable, under § 1343. When the Government prosecutes a defendant for wire fraud under a theory of fraudulent inducement, the requirement of “materiality” pro- vides “the principled basis for distinguishing everyday mis- statements from actionable fraud.” Ante, at 131. Because petitioners “have not contested that their misrepresenta- tions were material,” the Court has no occasion to pass on that issue today. Ante, at 132. But, I am skeptical that petitioners' misrepresentations were material. I Petitioners entered into contracts with the Pennsylvania Page Proof Pending Publication 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 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 agreements required petitioners to abide by the Workmen's Compensa- tion Act of 1915; to follow specifc “Buy America Provisions” that required petitioners to use steel and iron manufactured in the United States; to generally avoid using “materials produced by convict labor”; and to “not discriminate on the basis of race, color, national origin or sex.” See, e. g., App. 112, 114, 117–119, 173, 175. Cite as: 605 U. S. 114 (2025) 137 Thomas, J., concurring The contracts also required petitioners to “carry out appli- cable requirements of 49 C.F.R. Part 26,” id., at 114, 175 (em- phasis deleted), which implements the Federal Government's Disadvantaged Business Enterprise (DBE) program. The DBE program is the Government's “most far-reaching fed- eral 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 authorized for any high- way and transit program “be expended with small business concerns owned and controlled by socially and economically disadvantaged individuals.” Surface Transportation Assist- ance Act of 1982, 96 Stat. 2100. Under Department of Transportation (DOT) regulations, a small business qualifes 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 Page Proof Pending Publication more of the socially and economically disadvantaged individ- uals who own it.” 49 CFR § 26.5 (2024). DOT defnes the term “socially and economically disadvan- taged” primarily on the basis of race and sex. The program “rebuttably presume[s]” that any member of certain enumer- ated 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 qualifes as a “socially and economically disadvantaged individual.” Ibid. Among the groups presumptively eligible for DBE benefts are “ `Black Americans,' ” “ `Hispanic Americans,' ” “ `Native Americans,' ” “ `Asian-Pacifc Americans,' ” and “ `Subconti- nent Asian Americans.' ” Ibid. The DBE program also provides this favorable presumption to women. Ibid. DBE certifers “may not question claims of group member- ship as a matter of course.” § 26.67(a)(3). Thus, “[i]n prac- tice, being certifed as a `minority' to get presumptive status as the owner of a disadvantaged business eligible for prefer- 138 KOUSISIS v. UNITED STATES Thomas, J., concurring ences primarily operates on the honor code, as the informa- tion is rarely verifed.” Bernstein 223. While those excluded from DOT's list of presumptively disadvantaged groups may “attempt to prove” suffcient 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 detailed “Personal Narrative” providing evidence that “his employ- ment status and/or limited opportunities to earn income re- sult from specifc 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 119. The Government prosecuted petitioners under 18 U. S. C. § 1343, alleging fraudulent inducement. Ante, at Page Proof Pending Publication 118. The jury convicted, and petitioner Kousisis was sen- tenced to nearly six years in prison. II Although the Court leaves the question of materiality for another day because it was uncontested here, ante, at 131– 132, materiality is an element that the Government must sat- isfy 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 Serv ices presented the question whether “a defendant should face False Claims Act liability Cite as: 605 U. S. 114 (2025) 139 Thomas, J., concurring only if it fails to disclose the violation of a contractual, statu- tory, or regulatory provision that the Government expressly designated a condition of payment.” Id., at 190. While we rejected that limitation, we stressed that “a misrepresenta- tion about compliance with a statutory, regulatory, or con- tractual 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 misrepresenta- tion.' ” Id., at 193 (quoting 26 R. Lord, Williston on Con- tracts § 69:12, p. 549 (4th ed. 2003) (Williston)). In contract- ing specifcally, “ `[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 recipi- ent to manifest his assent' to the transaction.” 579 U. S., at Page Proof Pending Publication 193 (quoting Restatement (Second) of Contracts § 162(2), and Comment c, pp. 439, 441 (1979)). Thus, we explained, for a contract term to be material, it must go to “ `the very es- sence of the bargain.' ” 579 U. S., at 194, n. 5 (quoting Jun- ius Constr. Corp. 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 contract's labels. Even in the face of contrary contract language, ma- teriality “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 ma- terial even if the contract's language would suggest other- wise. For example, “if the Government regularly pays a particular type of claim in full despite actual knowledge that certain requirements were violated, and has signaled no change in position, that is strong evidence that the require- ments are not material.” Id., at 195. 140 KOUSISIS v. UNITED STATES Thomas, J., concurring 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 non- compliance with any of those requirements would always be material.” Id., at 196. The FCA, we explained, “does not adopt such an extraordinarily expansive view of liability.” Ibid.1 The Court reserved the question whether the standard for materiality in the FCA context is identical to the standard that applies to wire-fraud prosecutions, id., at 192–193, and Page Proof Pending Publication I express no defnitive view on that question here. But, the standard we articulated in Universal Health Services was a 1 In my view, the Court's reluctance to presume the materiality of every 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 opinion). And, those policies may bear little rela