Category: Fraud/Misrepresentation

Marketing firms take note: what you say about one client on your website will get noticed by other clients, and they may sue.

Plaintiff San Francisco Oven hired defendant Fransmart to market San Francisco Oven’s “fast-casual brick-oven” pizza restaurant to potential franchisees. After San Francisco Oven and Fransmart entered into an agreement, Fransmart changed its website to describe another pizza restaurant, Z-Pizza, as also employing the “fast-casual brick oven” concept.

San Francisco Oven believed that this information about Z-Pizza was false, and that Fransmart had changed the description to steer potential franchisees away from San Francisco Oven and to Z-Pizza. Before San Francisco Oven hired Fransmart, the Fransmart website had listed Z-Pizza as having merely “take-out and delivery and limited in-restaurant dining.”

After learning of the changed information on the website, San Francisco Oven sued Fransmart for false advertising under Section 43(a) of the Lanham Act, 15 U.S.C. §1125(a). Fransmart moved to dismiss, arguing that San Francisco Oven’s complaint did not allege sufficient facts upon which subject matter jurisdiction could be based. The court disagreed, and denied Fransmart’s motion.

In its analysis, the court looked to the case of Scotts Co. v. United Indus. Corp., 315 F.3d 264 (4th Cir. 2002) to recast the elements of a 43(a) claim as follows: (1) the defendant made a false or misleading description of fact or representation of fact in a commercial advertisement about his own or another’s [goods or services]; (2) the misrepresentation is material, in that it is likely to influence the purchasing decision; (3) the misrepresentation actually deceives or has the tendency to deceive a substantial segment of its audience; (4) the defendant placed the false or misleading statement in interstate commerce; and (5) the plaintiff has been or is likely to be injured as a result of the misrepresentation, either by direct diversion of sales or by a lessening of goodwill associated with its [goods or services].

The court held that San Francisco Oven’s allegations of Fransmart’s statements about Z-Pizza satisfied these elements. The statements on the website described goods and services of another company. The representations were material in that they dealt with the actual subject about which Fransmart was hired (i.e., the franchise concept). The representations had the tendency to deceive, due to the alleged mischaracterization of Z-Pizza’s concept. By posting the statements online, Fransmart placed them into interstate commerce. Finally, San Francisco Oven had properly alleged that diverted franchisees to Z-Pizza would cause damage.

San Francisco Oven, LLC v. Fransmart, LLC, 2005 WL 1838125 (E.D.Va., July 27, 2005).

Amiel Dabush was 40 minutes late to a business meeting in Aberdeen, New Jersey, and he blamed his tardiness on the failure of the GPS system in his $70,000 Mercedes S-Class to show him the way. Although he didn’t lose any money or business from being late to the meeting, Dabush must have been pretty ticked-off, because he filed a class action lawsuit against Mercedes under New Jersey’s Consumer Fraud Act.

Dabush claimed that Mercedes misrepresented the quality of the GPS system in its marketing brochure which claimed, among other things, that “[i]f there’s a road that goes there, the S-Class can show you the way.”

The New Jersey Court of Appeals affirmed the trial court’s dismissal of the lawsuit on summary judgment, finding that Dabush’s “asserted loss was based on an unreasonable expectation of what was ‘promised’ in the brochure – a perfect navigation system that would include data of all locations and provide directions no matter where he happened to be at a particular point.” Such an asserted loss, the court held, was not an “ascertainable loss” required to sustain a cause of action under the state’s Consumer Fraud Act.

Dabush v. Mercedes-Benz USA, Inc., 2005 WL 1240196 (N.J.Super.A.D., May 26, 2005).

The First Circuit has upheld the U.S. District Court for the District of Maine’s determination that a web developer’s litany of self-laudatory statements to its client did not give rise to actionable misrepresentation. The client was sophisticated enough to distinguish mere “puffery” from real factual assertions about the web developer’s services and abilities.

The case of Uncle Henry’s Inc. v. Plaut Consulting Co., Inc. arose out of “an agreement to create a website that went awry.” After Plaut’s Edgewing division failed to satisfactorily complete the complex auction website for which Uncle Henry’s had paid over a half million dollars, Uncle Harry’s sued, alleging breach of contract and fraud.

The proceedings quickly became complicated, as Plaut counterclaimed for breach of contract and quantum meruit. The hodgepodge of issues raised in the various claims and counterclaims and appeals and cross-appeals makes this case a good read for an insomniac practitioner in the First Circuit. There is too much detail to cover here in full, and in any event most of the issues are simply brick-and-mortar, that is, not unique to the law of the Internet.

One aspect of the case, however, may be of particular interest to web developers and the lawyers who represent them. This has to do with that dialect of commercial language known as “puffing.”

In the District Court, Uncle Henry’s had claimed that numerous statements that Plaut made about the quality of its work were fraudulently misrepresentative. Among these statements were that the developer would “provide Uncle Henry’s a total solution unsurpassed in the industry,” and that the developer “was a proven company with a long track record and many years’ experience.” The court granted summary judgment, holding that the statements constituted nothing more than “puffing” or “trade talk” upon which no reasonable person would rely. Citing to previous authority, the court poetically explained that “dealers talk” is “that picturesque and laudatory style affected by nearly every trader in setting forth the attractive qualities of the goods he offers for sale.”

On appeal, Uncle Henry’s argued that an exception to the rule that puffery should not be believed applies to it. Such exception provides that “puffing” statements are actionable if the hearer of them is so unsophisticated or lacking in information as to be “at the mercy” of the speaker. The Court of Appeals did not buy this argument, however, and affirmed the District Court on this point. As support for the conclusion that Uncle Henry’s was not merely at the mercy of Plaut, the court noted both that counsel for Uncle Henry’s had aggressively investigated and negotiated the contract before signing it, and that Uncle Henry’s had experience in web development before its dealings with Plaut.

Alas, I cannot resist. Isn’t it a coincidence that this puffing case comes from Maine, well known for its puffins?

Uncle Henry’s Inc. v. Plaut Consulting Co., 2005 WL 407394 (1st Cir. Feb. 22, 2005).

Puffin photo used courtesy of a Creative Commons license from Martin Burns.