On occasion, there may be a difference of opinion as to how and in what manner a particular statute should be interpreted. Such differences often lead to the under-utilization of salutary statutes. Such has been the case in the interpretation of CPLR 901-909,1 and General Business Law (GBL) §349 (deceptive and misleading business practices) and §350 (false advertising). In a recent case, Koch v. Acker, Merrall & Condit,2 the Court of Appeals has, inter alia, clarified that justifiable reliance is not an element of a GBL §350 false advertising claim. It was previously clear that there was no such requirement to state a GBL §349 claim for deceptive and misleading business practices. The Court of Appeals’ determination in this regard is in conformity with the language of both statutes, but appears to overrule a line of Appellate Division cases dating to 1986. In addition, the Koch decision finally makes GBL §350 more readily available in consumer class actions.
Alleged Misrepresentation
In Koch, the plaintiff alleged, among other things, that the defendant auction house offered certain wines for sale after having conducted a careful inspection of the wines to verify that they were genuine.3 The defendant allegedly described its wines as “extraordinary,” “absolutely stunning,” “superlative,” “incredible,” and among the “greatest wines…ever experienced.” Tucked away in the defendant’s extensive April 2005 and January 2006 catalogs was an “as is” disclaimer.4 The plaintiff alleged that certain of the wines purchased were counterfeit. In the action, the plaintiff asserted that the defendant misrepresented the authenticity of the wines, and that the defendant’s inspection protocols were false or materially misleading.
The ‘As Is’ Disclaimer
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