What if you’re enticed by Frito-Lay’s “Betcha Can’t Eat Just One” challenge regarding its potato chips, and you actually command sufficient restraint to turn down that second chip?
And what if you’re prompted by the “I’m Lovin’ It” hype at McDonald’s to sample a burger that you actually hate?
And how about this: What if that last M&M morsel actually did melt in your hand rather than in your month?
Can you sue those companies for fraudulent misrepresentation? Might a court side with you in construing their advertising slogans as fabrications, and actually award you damages?
It’s been done, of course, but it’s also well established that companies need some breathing room to tout their products and services. Ergo, courts in Colorado and nationally have long held that the so-called “puffery” that permeates the advertising industry should most often be construed as mere opinion and not actionable in a court of law.
Take insurer State Farm’s “Like a Good Neighbor” slogan. If you don’t feel like you were treated in neighborly fashion as a policyholder, can you sue on grounds of fraud, contract breach or misrepresentation?
Actually, that fact pattern was at center stage in a case that just concluded on appeal in a federal court. As noted in a news report chronicling the matter, the policyholder plaintiff in the case “kicked up a legal fuss” after he didn’t get as much money as he wanted in a claim settlement.
And he’s likely still in a state of agitation following the appellate tribunal’s ruling that State Farm’s time-honored slogan was not a representation of material fact.
Insurers routinely need to defend themselves in coverage defense matters. The above-cited case would seem to spell the outer limits on the type of claim that should be judicially entertained in litigation, and the court’s unambiguous ruling in the matter certainly reflects that.
