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Tuesday, October 14, 2003

Does "Puffery" Necessarily Equal Falsehood?

This post earlier today raised the issue but I want to break this question out with the hope of eliciting comments from securities litigation counsel:

In the Log On America case, the Court found, without citation to any authority, that "interposing the puffery defense is tantamount to conceding that the offending statements were technically inaccurate; the puffery defense is a challenge to the materiality of those misstatements." (Emphasis added). The Court stated that as a result, for purposes of the motion to dismiss, it deemed defendants to have conceded that the substance of the challenged statements was untrue.

Is the Court's ruling that defendants necessarily conceded that the statements were untrue proper as a matter of law?

Comments

I think the Court's ruling is close to being proper, but not quite. Offering the puffery defense could be said more properly to be conceding that there is no supporting factual basis for the claims being defended as puffery, and that the claims therefore are being offered to buyers or other readers as nothing but opinion.

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