Your new company website looks great. The Marketing Department staff is thrilled with the content. The VP of Sales is happy with the “look and feel” and improved functionality. The word comes down from senior management – “go live”. Now fast forward to a time after a customer suffers a loss and seeks to recover its damages. Guess what “content” is front and center in the customer’s suit against the company? Right – text from the new website that among other things states that the company “has instituted the most stringent safety standards.”
Communicating with the public and potential customers via your website and related electronic documents is now the norm in business. The traditional means of carefully scripting written communications has fallen by the wayside under pressure from the speed and ease of access to website based information. However, just like written communications, website based content must be drafted with care. Overreaching statements regarding skills, procedures, safety, services, capabilities and expected results can be used to maintain a basis for claims such as fraud, negligent misrepresentation and unfair or deceptive trade practices.
The case of Star Child II, LLC v. Lanmar Aviation, Inc. (D. Conn., 2013) illustrates how website content can be used to help maintain a legal cause of action. Star Child, the Aircraft Owner, flew its Aircraft to Lanmar’s FBO facility in Connecticut for avionics and maintenance repairs. After completing the repairs, Lanmar’s staff moved the Aircraft to a location in front of their maintenance hangar. Later the same day, a fuel truck owned and operated by Lanmar backed towards and struck the Aircraft. As a result of the damage the Aircraft was transported to the OEM’s factory in Florida for repair. The airport where Lanmar is located is governed by the applicable regulations found at 14 C.F.R. Section 139 and include the requirement for “procedures for protecting persons and property during storing, dispensing, and handling of fuel and other hazardous substances and materials.” In addition, Connecticut DOT policy requires that FBO’s be held to a set of “Minimum Standards” for commercial aeronautical businesses – including developing and maintaining a set of standard operation procedures.
Lanmar’s website indicated that the company “has implemented the most stringent safety standards” and that “your aircraft is in safe hands while based at Lanmar Aviation FBO.” Star Child alleges that it relied on these statements when entrusting its Aircraft to Lanmar. Star Child claims that in fact, contrary to federal and state requirements, Lanmar had no procedures in place to prevent the accident that damaged the Aircraft. In a Motion to Dismiss, Lanmar argues that the Star Child claims of fraud, negligent misrepresentation and unfair or deceptive trade practices should be dismissed because, even if not true, the statements on the website were at most “puffery” and thus not actionable under Connecticut law. In all three instances the court found that Star Child’s allegations were sufficient to state a claim and survive the Lanmar motion to dismiss. While surviving the motion to dismiss is not the same as succeeding on the merits, it does give Star Child instant bargaining power with regard to possible future settlement negotiations.
Website communications are increasingly a first source of documentation for certain claims related to representations made by a business. While it is no guarantee that all overreaching statements will be detected and fact checked, best practice is to include legal counsel as part of your website content final review team before you “go live.”