Similar to fraudulent misrepresentation, a negligent misrepresentation claim is hard to prove. Usually, a plaintiff will allege both fraudulent and negligent misrepresentation because with negligent misrepresentation no proof is required regarding a defendant’s intent to defraud. The Restatement Second of Torts defines “negligent misrepresentation” as, One who, in the course of his business, profession or
False and Deceptive Advertising in Minnesota
False Statement in Advertising Act | Minn. Stat. 325F.67
False advertising applies to any material assertion, made to the public, which is untrue, deceptive or misleading. Anything in an advertisement that is subject to proof is an assertion, even the appearance of the product in a picture or the level of enjoyment the product causes. Types of assertions which receive higher scrutiny are those relating to price, testimonials, comparisons to competitors, health, get rich schemes and ads directed at children.
Puffery in Minnesota
Of course, advertisers can still make funny ads with outrageous claims. “Puffery” is a defense in such cases. Puffery allows advertisers to create funny ads, but it has a very narrow application in court, applying to only those assertions which “any and all reasonable persons would know” is obviously not intended to be stated for its truth.#1 If it can be shown that not everyone would be in on the joke, a court might find that puffery is not a valid defense to a false advertising violation.
Enforcement and Prosecution of Violations of the Minnesota False Advertising Act
The attorney general and county attorneys have the responsibility for enforcement and prosecution of violations of the Minnesota False Advertising Act. Most consumer complaints go through their office, but private causes of action are allowed under the “private attorney general” statute (Minn. Stat. 8.31, subd. 3(a)). If the consumer has suffered injury, pecuniary damages are generally allowed, but they are not an essential element of a claim. Most false advertising claims can also be brought under the federal Fair Trade Act, which is applied mainly in non-binding arbitration in the Better Business Bureau’s National Advertising Division. Only rarely will a false advertising claim be heard in federal courts.
Michael Fleming, Advertising Law Basics, Stearing Clear of Misleading Practices, Minnesota CLE, Fraud, Misrepresentation & Deceptive Trade Practices (March 11, 2005).
Statutory Fraud Claims: Uniform Deceptive Trade Practices Act
Minnesota has a number of statutory fraud claims and the Uniform Deceptive Trade Practices Act (“UDTPA”), found in Minn. Stat. §§ 325D.43,et seq., is one of those claims. There are thirteen ways in which a person can engage in deceptive trade practices. Minn. Stat. § 325D.44 states, A person engages in a deceptive trade practice
False Statement in Advertising Act
Minnesota’s False Statement in Advertising Act (“FSAA”) prohibits an advertisement which “contains any material assertion, representation, or statement of fact which is untrue, deceptive or misleading.” Minn. Stat. § 325f.67. There are two issues under the FSAA regarding the scope of the statute. First, the conduct must be an advertisement disseminated to the public. Second,
Common Law Fraudulent Misrepresentation
Although it has a variety of different names, including just misrepresentation and just fraud, the Minnesota Supreme Court has defined fraudulent misrepresentation as having the following elements: A false representation by a party of a past or existing material fact that is susceptible of knowledge, The person making the representation made it either a) with
False Advertising Under the Lanham Act
Usually, false advertising claims are brought under the Lanham Act, which is federal legislation located at 11 USD § and Minnesota’s Deceptive Trade Practices Act (“DTPA”). Below is an explanation of the Lanham Act. The Lanham Act states, in relevant part: (a) Civil Action (1) Any person who, or in connection with any good or