possible, and consumers would not interpret the statements as hyperbolic in light of the broader context. Regarding Defendants’ materiality argument, Plaintiff counters that materiality is a fact issue inappropriate for resolution at this stage and that, at any rate, the alleged misstatements were material because consumers rely on the representations of accuracy they communicate. Plaintiff further contends that any errors in its website create a fact issue and do not impact its injury because no evidence has been presented regarding any customers’ awareness of the alleged errors.
- a. Puffery
Statements of puffery are nonactionable under the Lanham Act and both New York General Business Law Sections 349 and 350. See, e.g., In re Scotts EZ Seed Litig., No. 12 Civ. 4727, 2013 WL 2303727, at *11 (S.D.N.Y. May 22, 2013); Lipton v. Nature Co., 71 F.3d 464, 474 (2d Cir. 1995)).
The Second Circuit has defined puffery as either: (1) “subjective claims about products, which cannot be proven either true or false,” or (2) “an exaggeration or overstatement expressed in broad, vague, and commendatory language … considered to be offered and understood as an expression of the seller’s opinion only,” or (3) “an exaggerated, blustering, and boasting statement upon which no reasonable buyer would be justified in relying.” Time Warner,
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