497 F.3d at 159–160 (quoting Lipton v. Nature Co., 71 F.3d 464 (2d Cir. 1995), Castrol Inc. v. Pennzoil Co., 987 F.2d 939, 945 (3d Cir. 1993), and Pizza Hut, Inc. v. Papa John’s Int’l, Inc., 227 F.3d 489, 497 (5th Cir. 2000)). Thus, and contrary to Plaintiff’s argument, a provable statement may still constitute nonactionable puffery if it fits into either of the other two detailed categories.
Under these principles, the Court is persuaded that UpCodes’s representations regarding accuracy and completeness are nonactionable puffery. At the outset, the Court concludes that Plaintiff has adequately pled falsity as to these statements by alleging that while UpCodes claims that the codes it offers are complete and accurate, they are not.[1] Nonetheless, the statements of completeness and accuracy -- that, for example, UpCodes provides “a complete understanding of relevant material,” its code library is “always up to date,” and customers will “never work from outdated code”
- ↑ The Court notes that certain of the alleged errors do not appear to be actual errors. For example, and as the Court explained in the Summary Judgment Order, the failure to post other, related provisions does not defeat the completeness of the Wyoming codes. See ICC, 2020 WL 2750636, at *18. Likewise, the reference to Chapter 1 of the New Jersey International Building Code 2018 appears to be a reference to Chapter 1 of the American Concrete Institute’s Building Code Requirements, not, as Plaintiff alleges, an erroneous reference to the model International Building Code. (See Complaint ¶ 62.) Nevertheless, that certain of the alleged errors are not actual errors does not render all of ICC’s allegations defective. Accepting all factual allegations in the Complaint as true, the Court concludes that sufficient errors have been identified to establish falsity.
18
