Web developer was only “puffing” when it represented the quality of its services

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?

puffin image

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.