by Steve Gardner
As with pornography, judges seem to believe that they know puffery when they see it. More precisely, courts sometimes use puffery as a pretext for dismissing deceptive sales practice lawsuits that they don’t think much of. An excellent summary of exemplary opinions can be found in a new article in the National Law Journal for April 9, 2007, The Power of Puffery, by J. Russell Jackson.
The author is with a big old defense firm, so not surprisingly, he likes the variety of ways that courts use to boot a case based on a finding of puffery. Also not surprisingly, the author fudges somewhat in his description of consumer law, the better to meet his argument: “[T]he First Amendment to the U.S. Constitution protects commercial speech about products, so long as it is not false.” More accurately, the Supreme Court has said that commercial speech can’t be “misleading.” Central Hudson Gas & Electric Co. v. Public Service Comm’n of New York, 447 U.S. 557 (1980).
There is a whale of a difference between outright falsity and misleading claims. For example, the author’s statement about commercial speech is false. Other points in his article are merely misleading.
For example, the author says that most consumer protection laws “include as elements of liability that the statement must be both material and false or misleading.” Well, not so much — most state UDAP provisions do not include materiality as an element of proof, because they presume materiality from the infraction. There are some UDAP provisions that expressly require materiality (liability for failure to disclose a fact known only to the seller, for example), but that is usually not the case. And the author also neglects to mention “unfairness,” the U in UDAP.
In support of the statement that “courts are skeptical of claims brought by people who cannot identify a false statement, but claim merely to have been induced by positive imagery to purchase a product or use it in a way that the general public knows is illegal or unhealthy,” the author can only come up with a California trial court opinion. This is just pitiful.
However, the article also cites to several seemingly sane courts who render opinions on puffery that reflect the approach many courts take when puffery is raised: If the court thinks the claim is a bad one, it’s not puffery. If the court thinks the claim is silly, it’s puffery all right.
The article is a cautionary tale for consumer advocates — it shows both (1) the biased ways in which defense counsel present (and, in their defense, perhaps perceive) reality, and (2) the lengths to which courts will go to keep a case from going to the jury.
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