The publisher Matthew Bender & Company sells a legal resource manual called New York Landlord-Tenant Law.  The book, which is also called the "Tanbook," is published annually.  It's sold on Amazon, through Matthew Bender's website, and as part of a subscription service. In advertising for the book, the publisher claimed that the book "brings together all the laws and regulations governing landlord/tenant matters in New York, providing the text of State statutes, regulations, and local laws."  Apparently, notwithstanding this claim, the book did not, in fact, contain all of the relevant laws. 

Not surprisingly -- given that the book was sold to lawyers -- a lawsuit ensued.  What is surprising, however, is that the lawsuit made its way all the way up to New York's highest court, the Court of Appeals.  And, even more surprising than that, the Court affirmed the dismissal of the complaint, saying that reasonable consumers wouldn't think that a book promoting the fact that it contains "all" of New York's landlord-tenant laws, does, in fact, contain all of those laws.  Here's why. 

New York's General Business Law prohibits "deceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state."  In order to prove a violation of the statute, a plaintiff must show that:  (1) the defendant's conduct was consumer-oriented, (2) the defendant's act or practice was deceptive or misleading in a material way, and (3) the plaintiff suffered an injury as a result of the deception.  The Court of Appeals' decision here turned on whether Matthew Bender's conduct violated the second prong of the test by being materially misleading.  A defendant's actions are materially misleading when they are "likely to mislead a reasonable consumer acting reasonably under the circumstances."  

The plaintiffs argued in the lawsuit that Matthew Bender's advertising was a classic "bait and switch," since the publisher advertised that the book contained all laws, but that, when it arrived, it didn't.  Matthew Bender argued, essentially, that given the nature of the claim, the product involved, and because of the disclaimers used in the sales contracts with annual subscribers, that reasonable consumers would not have been misled. 

So, why did the Court hold that "all" didn't mean "all" here? 

First, the Court suggests that it's not reasonable for consumers to rely on the representation that the book contains all of the relevant laws, since the laws are subject to legislative amendment at any time.  While it makes perfect sense that consumers would not expect that representation to be true during the course of the entire year, the Court doesn't provide any rationale why consumers wouldn't expect the representation to be true at least at the time when the book is published.  

Second, the Court points to the terms and conditions governing subscribers to the annual edition of the book, which was apparently included in invoices that the plaintiffs received after purchasing the book.  The terms includes a broad disclaimer of warranties, which states, "WE DO NOT WARRANT THE ACCURACY, RELIABILITY OR CURRENTNESS OF THE MATERIALS CONTAINED IN THE PUBLICATIONS."  While the disclaimer undoubtedly makes clear that the publisher is not making any promises about the accuracy or completeness of the book, the Court doesn't explain how a disclaimer -- that is sent to consumers after they have been misled by an advertising claim and purchased the item based on that representation -- can cure the harm that was already caused. 

In affirming the dismissal of the complaint, the Court concluded, "The Tanbook's susceptibility to revision at any time, coupled with the fact that the disclaimer addresses the precise deception alleged in plaintiffs' complaint, leaves no possibility that a reasonable consumer would have been misled about the contents of the Tanbook." 

What does the Court's decision mean for advertisers?  Can it really be that "all" does not mean "all"?  Well, it probably doesn't mean all that.  Here are some potential (useful) take-aways. 

In order to interpret an advertising claim, the claim must be viewed in the context of the advertising as a whole, taking into account the specific product being promoted.  While, in the abstract, a claim may have a variety of meanings, the relevant question is what the claim means in the specific context in which it is used.  Whether you agree or disagree with the Court's decision here, the Court's decision is, in large part, focused on the question of how a reasonable consumer would interpret the "all" claim in the context in which it was communicated. 

As regular readers of this blog know, courts -- as opposed to the Federal Trade Commission or the National Advertising Division -- do bring a high degree of skepticism to false advertising claims and a real reluctance to allow these cases to move forward.  It seems to me that, notwithstanding plaintiffs' assertions that advertisers have made claims which appear to be false on their face, courts often dismiss lawsuits when they just don't buy the argument that consumers were truly deceived or that they were actually damaged in any meaningful way.  

And what about the Court's holding that appears to suggest that a disclaimer provided after the fact, that also contradicts the main message of the advertising, can cure a false advertising claim?  At a minimum, this holding -- if it means what it appears to mean -- would be contrary to a well-established body of state and federal law.  As Associate Judge Eugene M. Fahey's dissenting opinion stated, "This theory would allow routine disclaimers to render the consumer protections, codified by the statute, meaningless."  

Himmelstein, McConnell, Gribben, Donoghue & Joseph, LLP v. Matthew Bender & Company, 2021 WL 2228800 (N.Y. 2021).