“look like new forever” might not be puffery in context of technological innovation claims

EP Henry Corp. v. Cambridge Pavers, Inc., 2017 WL 4948064, No.
17-1538  (D.N.J. Oct. 31, 2017)
Disclosure: I consulted on this case. 
EP Henry and Cambridge compete in the market for concrete
pavingstones. Cambridge made superiority such as “only Cambridge pavingstones
have ArmorTec – a unique process that guarantees the color will never fade,
backed by our fully transferable, lifetime guarantee.” Cambridge also claimed
that ArmorTec pavers would “always look like new,” they’d would “look like new
forever,” and that their color “will never fade.” EP Henry alleged that
consumers had told EP Henry distributors that they were misled, and that after
purchase they discovered that the pavingstones didn’t continue to look like new
and weren’t fade-proof.
The court ruled that, in context of additional claims about advanced
technology, phrases like “they’ll look like new forever” and “the color will
never fade” weren’t puffery as a matter of law, even though they would be
without additional context. “[C]ourts around the country regularly find that,
standing alone, language suggesting perpetuity or an indefinite period of time
constitutes non-actionable puffery,” but Cambridge’s ad campaign allegedly
touts its breakthrough technology, telling potential customers that ArmorTec is
a “unique process.”  It was “plausible
that a potential customer could reasonably come to the conclusion that
Cambridge is not puffing, but has actually found the ‘secret sauce’ to enable
pavingstones to ‘look like new forever’ or ensure that ‘the color will never
With that out of the way, the New Jersey Consumer Fraud Act
claim (if any) failed because the NJCFA only grants standing to consumers and
commercial competitors “who are acting as consumers” or who are involved in a
“consumer transaction,” but not to commercial competitors generally. Negligent
misrepresentation and common law fraud claims failed because EP Henry couldn’t
allege reasonable or justifiable reliance on the alleged misstatements. Though EP
Henry argued that it reformulated its advertising campaign in response to
Cambridge’s alleged misrepresentations, it didn’t allege that it relied upon or
believed Cambridge’s alleged misstatements in doing so. The common law unfair
practices claim wasn’t recognized by New Jersey, which limits common law unfair
competition to (1) the “passing off” of goods or services; (2) unprivileged
imitation; and (3) tortious interference.

The Lanham Act false advertising claim, however,
survived.  EP Henry didn’t allege “a
specific instance of a consumer choosing to purchase pavers from Cambridge over
EP Henry because of Cambridge’s false advertising statements,” but that wasn’t
required before discovery.  It
sufficiently pled that, as a direct competitor, it suffered harm to its
reputation and sales by losing customers as a result of Cambridge’s alleged
misstatements. Without evidence from third parties and discovery, however,
Cambridge could still be entitled to summary judgment.

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