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Puffery or False Employment Promises

I like to think that I’m one of those jumpers into Monday!

 

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Which brings me to the blog topic of marketing versus puffery. I remember the first time that I heard the word puffery in law school. I thought that the law professor was kidding.

I soon learned it was a real legal concept. That it’s really a promotional claim that no reasonable person would consider the advertising statements literally. I guess it’s perfect for sales. Like the salesman who always claims that I have “lots of things in the pipeline”, when his manager questions his lack of sales.

How about those horrible commercials for Chevrolet, with the people so amazed at the cars and trucks that all they can do is jump around and say wow. I have never seen “not actors real people” seem so excited about car seats and looking at the half of a car. That’s not puffery in marketing. That’s just nonsense.

A better example is the advertising of Papa Johns Pizza. It’s puffery because no one really believes that they have better ingredients and therefore better pizza. Someone could potentially like the taste of their sauce or think that Peyton Manning is funny in the ads. However, no reasonable person would think they have better ingredients, since all pizzas basically have the same ingredients. But that is acceptable puffery advertising.

Unfortunately for Uber Technologies, they crossed the line from puffery, into a claim of misrepresentation. Now Uber  is paying a 20 million dollar settlement for claims of driver deception. (CNBC)

The agreement was made with the Federal Trade Commission relating to statements that Uber had made regarding claims of income that their drivers could make. Between the years of 2013-2015, while they were trying to recruit drivers to their service rather than competitor Lyft, the advertised potential driver earnings far exceeded what drivers really were earning. Plus, drivers were paying substantially more for leased cars than advertised.

The attached article provides a great discussion of earnings in the major cities. It also provides a reminder that companies just can’t get away with misrepresenting benefits, just to assist their growth. Meanwhile, Uber says that they are glad to settle this dispute.

Still, I am glad that Uber is doing well. At least that’s good for us when we want to catch a ride. Right?

And for pic o’ day, it’s really a thought that was sent to me about the progress of New Year’s resolutions:

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Photos and Law

Last week, Geoff Glick and I attended a seminar in Charleston, South Carolina. That caused me to miss writing a Friday/Mother’s Day blog; but it didn’t get in the way of Geoff shopping for some Charleston hats! Of course, I promise to mention some law so we don’t change this to a fashion blog. coach 1coach 2

Today, I think,  I would prefer to keep posting pictures. Like this one that was sent to me. Can you see the combination personality on the T-shirt… in front of the White House. It’s a bit of a riddle for today! Hint: “cartoon plus hair”.

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But I digress! Here’s SOME LAW. It involves Uber and includes a case from South Carolina. It’s also a reminder to be vigilant for safety, even when we think that all is safe.

From The Recorder comes a court case about an Uber driver named Abderrahim Dakiri of Boston, who was convicted in February of assault and battery. The second Uber case being appealed relates to kidnapping and sexual assault charges against another Uber driver in question, Patrick Aiello, are pending in Charleston, South Carolina. In both instances, according to the Court opinion, It’s not whether the two drivers committed the acts, it’s whether Uber should be responsible. Their hiring practices and screening of their drivers is the real legal question . Uber’s defense is that each of their drivers is an independent contractor. So far, in other cases, that defense has not gotten any play. The Court recited in the opinion that: “It may be that facts will ultimately be revealed that disprove plaintiffs’ allegations or that tilt the scales toward a finding that Uber drivers are independent contractors,” Illston’s order reads. “However, taking the allegations in the amended complaint as true, plaintiffs have alleged sufficient facts that an employment relationship may plausibly exist.” Factually, Plaintiffs in the South Carolina tort claim have sued Uber for negligent hiring, citing evidence that Aiello had a 2003 assault conviction. According to the pleadings, Uber missed that in his background check. In their response to the lawsuit, Uber described the conviction as a “12-year-old disorderly-persons offense that could have been expunged,” according to Illston’s order. The Judge denied Uber’s motion to dismiss the negligent hiring claim in regards to Aiello, but granted it in the Boston Dakiri case, because the plaintiffs did not present evidence that there was anything in his background that should have prevented him from driving for Uber. As a sidenote regarding Uber, it recently settled a class action suit that was brought for driver wages and tips. The settlement gave drivers an approximate $84 million resolution, but Uber still did not admit that it’s company definition of their drivers’ status “independent contractors” was incorrect. So that will probably still be a continuing defense in other case. Just worth noting… Uber is only as safe as each of its drivers.  And for pic o’ day: I think this cartoon from WUMO tells the current state of technology:

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