E&O Report | “Puffery the magic dragon” will bite you if you are not careful!
E&O Report | July 2026 | Volume 41, Number 7
A. Background
Hopefully my reference in the title to this article to “Puff the Magic Dragon”, the famous 1963 folk song by Peter, Paul & Mary does not date me too much and you all, regardless of age or generation still know it.
The “Puff” part of the Dragon’s name is a reference to a Puff of smoke that comes before the breath of fire of a dragon. The etymology of the word “Puffery” is derived from that notion….from the verb “puff,” which originally meant to blow air or smoke. By the 1530s, it shifted metaphorically to mean “inflating” or “exalting”. By the 18th century, it was used to describe exaggerated, self-interested praise in advertising.
In the law, it has the same meaning. Under New York law, puffery is defined as exaggerated, vague, or boastful sales talk and expressions of opinion that cannot be objectively proven true or false. Because these statements lack definite, measurable facts, courts rule that a reasonable consumer could not rely on them as factual representations negating any DUTY arising therefrom or any claim based on Intentional (Fraud) or Negligent Misrepresentation.
B. The Reason for the Article – The Problem
Despite many years now of warning…of cautioning you NOT TO make aggressive statements in your marketing materials AND especially NOT on your websites, as to your “expertise” and the incredible and broad services you provide…too many of you still do. And like the fire and bite of the Dragon after the “puff”, litigation based on those statements are a real thing and could increase the duty to which you are held.
I am currently defending 2 brokers in separate cases based on the Plaintiff-Insured trying to hold the Brokers liable to a HIGHER standard because of the Broker’s website statements.
C. The Current E&O Cases based on Statements on a Website
Literally in the last 2 weeks I was retained to defend brokers in two “Failure to Procure” cases where the Complaint is mainly based on what the Broker’s website said. More to the point, Plaintiffs are using those statements to argue for a HIGHER DUTY than the law would ordinally apply. Remember, anyone can agree to do more than the minimum the law IMPOSES. But when you voluntarily agree to do more than the minimum, that is the heighted standard by which you will be measured.
In one case the Complaint actually inserted multiple screenshots of the Broker’s Website quoting language like this:
“we find the right coverage, with the best company, at the best price for you.”
In my other case the Complaint simply quoted the website which said this:
“As independent agents we are advocates for our clients. We represent them to the insurance carriers during underwriting and once a claim occurs.
During the underwriting process it is our job to negotiate with our underwriters on behalf of our clients to make sure our clients receive the best possible coverage, terms and pricing available in the marketplace.
In the second case the contractor business went from Commercial Auto Coverage with an Admitted Carrier (who non-renewed due to loss history and claims), to Assigned Risk with a premium 10 times as high as previously. While the insured paid the higher premium (for 2 years in a row), it just brought suit for that differential saying that it just found out from their new broker that with certain risk management suggestions and adjustments, (like removing high risk drivers), they could have reduced their premium considerably.
The claim is that because of the Website statements, (like that the Broker will “make sure our clients receive the best possible coverage, terms and pricing available in the marketplace”, among other things, a HIGHER duty than merely procuring the coverage requested was created.
C. The Law
My plan, among other things, is to attack and negate, that the marketing / website statements are simply PUFFERY…and do not create an increased duty to any particular insured.
As stated above statements that are not actually statements of present facts can be viewed as (i) “Opinion” and/or (ii) “Puffery”. MMCT, LLC v. JTR College Point, LLC, 122 A.D.3d 497 (1st Dept. 2014)(“The second alleged misrepresentation was that the project was in a ‘great area’ and that Halpern would prefer to invest his own money rather than rely on his family. This statement is non-actionable opinion or puffery”). Mandarin Trading Ltd. v. Wildenstein 16 N.Y.3d 173 (2011); Jacobs v. Lewis, 261 A.D.2d 127 (1st Dept. 1999) (“[A]lleged misrepresentations amounted to no more than opinions and puffery or ultimately unfulfilled promises, and in either case were not actionable as fraud”); Sidamonidze v. Kay, 304 A.D.2d 415 (1st Dept. 2003). Opinion cannot sustain an action for fraud or misrepresentation. See Platus Corporation Pension Plan v. Nazareth, 271 A.D.2d 422, 423 (2000); see also Zanani v. Savad, 217 A.D.2d 696, 697 (1995).
“To state a claim for fraud or inducement under New York law, a party must allege material misrepresentation of a fact, knowledge of its falsity, an intent to induce reliance, justifiable reliance by the plaintiff, and damages.” Transnat’l Mgmt. Sys. II, LLC v. Carcione, 2016 WL 7077040, at *5 (S.D.N.Y. Dec. 5, 2016). Statements that amount to “little more than mere puffery, opinions of value or future expectations . . . do not constitute actionable fraud.” Elghanian v. Harvey, 671 N.Y.S.2d 266, 266 (1st Dept. 1998).
The potential problem from a technical aspect is that a plaintiff arguing for a HIGHER DUTY, based on such website statements is NOT THE SAME legal cause of action as what the cases discuss which is a Misrepresentation claim. The elements are different.
The problem from a practical standpoint is that such language and pictures of the website would be compelling to a Judge to deny an early dismissal motion and allow the Plaintiff to at least conduct discovery on the issue.
Conclusion
These facts could make bad law and since Websites are FOREVER and with the use of the “Internet Archive” a Plaintiff’s lawyer can find your website from years ago and use that marketing language in against you. (https://archive.org). They can always be found and used as the basis for a duty greater than Murphy.
So, the solution is to:
1. SCRUB your website and materials of anything that has the problematic words and phrases we have warned against for years, and
2. Add a DISCLAIMER to your website and materials that negates reliance on generalize language, and
3. Contact the BIG I or me directly when in doubt.
We are here to help.
Submitted by:
Howard S. Kronberg, Esq.
Kaufman Dolowich, LLP
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