The Commonwealth of Pennsylvania (“Commonwealth”) filed a Complaint against Golden Gate National Senior Care, LLC (“Golden Gate”) asserting claims of: (1) Unfair Trade Practices and Consumer Protection Law (UTPCPL) violations (seeking injunctive relief, restoration and civil penalties); (2) breach of contract (seeking damages); and (3) unjust enrichment (seeking disgorgement).
Golden Gate consists of a group of companies that manage and operate 36 skilled nursing facilities (nursing homes) in Pennsylvania.
The Commonwealth alleged that Golden Gate engaged in unfair and deceptive acts and practices towards Pennsylvania consumers and the Commonwealth by: (1) making chain-wide misrepresentations in marketing materials; (2) making facility-level misrepresentations in its marketing materials, resident assessments/care plans and billing statements, presenting misleading appearances during Commonwealth inspections, and creating false records; (3) making misleading statements about the level of care that would be provided to residents; and (4) failing to provide basic care.
On October 8, 2015, Golden Gate filed twelve Preliminary Objections to the Complaint.
In deciding Golden Gate’s Preliminary Objections, the Commonwealth Court of Pennsylvania (“Appellate Court”), one of Pennsylvania’s two intermediate appellate courts, filed a published opinion on March 22, 2017 in which it stated the following with regard to two of Golden Gate’s Preliminary Objections:
“Marketing Statement No. 1: “We have licensed nurses and nursing assistants available to provide nursing care and help with activities of daily living (ADLs). Whatever your needs are, we have the clinical staff to meet those needs.” Amended Complaint at 22, ¶ 83(a). This statement contains “subjective analysis or extrapolations, such as opinions, motives and intentions, or general statements of optimism,” EP Medsystems, 235 F.3d at 872, and is “expressed in broad, vague, and commendatory language.” Castrol, 987 F.2d at 945. It does not contain a “false representation of specific characteristics” of the services offered. Id. (emphasis added). The Commonwealth does not contend that Golden Gate does not have licensed nurses and nursing assistants for the purpose of providing nursing care and helping with ADLs. Rather, it maintains that Golden Gate does not have sufficient staff to render care. However, Marketing Statement No. 1 makes no representation that nurses will be immediately available to provide such assistance, or that it will be provided within a specific time frame. Thus, we conclude that Marketing Statement No. 1 is puffery.”
“Marketing Statement No. 2: “Snacks and beverages of various types and consistencies are available at any time from your nurse or nursing assistant.” Amended Complaint at 22, ¶ 83(b). This statement contains no more than “broad, vague, and commendatory language.” Castrol, 987 F.2d at 945. The Commonwealth does not assert in its Amended Complaint that snacks and beverages were not always available from staff, but rather, that there was insufficient staffing to timely respond to residents’ requests. Because Marketing Statement No. 2’s references to the availability of “snacks and beverages of various types” at “any time” are vague and broad, it is puffery.”
What Is Puffery?
The Appellate Court stated that “puffery” is an exaggeration or overstatement expressed in broad, vague, and commendatory language. Such sales talk, or puffing, as it is commonly called, is considered to be offered and understood as an expression of the seller’s opinion only, which is to be discounted as such by the buyer, and on which no reasonable person would rely. The ‘puffing’ rule amounts to a seller’s privilege to lie his head off, so long as he says nothing specific. Puffery is distinguishable from misdescriptions or false representations of specific characteristics of a product. As such, it is not actionable.
Source Commonwealth Of Pennsylvania v. Golden Gate National Senior Care, LLC, 336 M.D. 2015.
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