Posted By:
Peter SpaethWhile I would have advised Brian to word it differently, so long as he didn't actually guarantee that it was the only one in existence (which he didn't) and so long as he didn't actually KNOW of another one, I would think he could successfully defend against any claim of misrepresentation on a couple of grounds, one, he technically didn't make any false statements of FACT other than to report the results of his due dilegence (although admittedly it comes fairly close), and two even if what he said could be read as an affirmative representation that the card was the only one of its kind, it probably isn't reasonable to rely on such a statement because if you think about it there is no way for anyone to know that is true to a certainty (one can only know it is false). In other words, it's hype, puffery, etc.
Now that said, it would not be an entirely frivolous claim on the other side, and I can see the arguments (my friend Hal being a plaintiff's attorney could probably make them quite cogently) but I think Brian would have the better side of it.