Jury Must Decide Whether “All” / “Every” Claims Are Puffery

When is an absolute mere puffery?

Johnson v. MGM
Motion to dismiss denied – MGM distributed a James Bond movie collection that claimed to include “all” James Bond films and “every” girl, villain, and star, but excluded lesser known Bond titles “Casino Royale (1967)” and “Never Say Never Again.” Plaintiff claimed she would not have purchased the box-set if she knew those titles were excluded, and would have not have paid the premium she did had she known of the omitted titles. MGM claimed title selection was “a matter of artistic judgement,” and the terms “all” and “every” as used were puffery.
The court found since the packaging only listed the movies included, a reasonable consumer would not know if certain titles were excluded. Whether a reasonable person would expect “Casino Royale (1967)” and “Never Say Never Again” to be included in a collection of “all” James Bond films was a question for a jury. Thus, plaintiff had sufficiently pled Breach of Express Warranty Claims as well as claims under the Washington Consumer Protection Act (WCPA) to survive a motion to dismiss. Breach of Implied Warranty of Merchantability and claims against MGM corporate parents were dismissed as insufficiently pled, but leave to amend was granted.
[W.D. WA; 2:17-cv-00541]
jbho: Another reminder to be careful when using absolutes in advertising copy.

It will be interesting to see how this proceeds, and whether the average person would consider the out-of-band films to be part of the larger Bond cannon. After all, bands release “Greatest Hits” albums all the time, and there is certainly room for discussion as to whether each song is great, or other songs should have been included. And the packaging does say “from Dr. No,” so seems clear Casino Royale (1967) is not included.

The dicta was entertaining as well, as it contains some move title puns in the rulings. For example, on granting leave to amend, the court quipped:
• “From the Defendants’ perspective, this claim will have to Die Another Day.”
• “Plaintiff may amend her claim once if she discovers sufficient facts to establish privity; thus, this claim may Only Live Twice.”
• “Although Diamonds Are Forever, if Plaintiff wishes to amend her Complaint as directed above, she only has fourteen (14) days from the date of this Order.”
Emphasis added.

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