Only a Fool Would Believe Our Ads: Apple

William J. Gillis Jr. filed a lawsuit against Apple in September which alleged that Apple and AT&T had made overstated the performance of the iPhone ("twice the speed, half the price," remember?). Apple's interesting legal response says, in part, we're not lying about the performance, but honestly, you should know better than to believe us.

It's actually a legal term: "
puffery," or in this case "puffing," in Apple's sixteenth affirmative defense on page five of Apple's legal reply (.PDF) which Wired obtained. Puffery means:
"A subjective, boastful claim that is so exaggerated or vague that a reasonable consumer would not take it seriously."
Apple's sixteenth affirmative defense states:
Plaintiff's claims, and those of the purported class, are barred by the fact that the alleged deceptive statements were such that no reasonable person in Plaintiff's position could have reasonably relied on or misunderstood Apple's statements as claims of fact.
Yep, puffery. Basically Apple is saying, you'd have to be an idiot to believe us. Despite the statement they make in their fifth affirmative defense on page 2:
Any statements made by Apple were truthful and accurate and were not misleading or deceptive.
Whoa, you can't have it both ways! But as far as puffery goes, this article has an excellent look at puffery, and makes one wonder if Apple's defense, at least in terms of puffery, holds water. One sentence in particular:
Instead, false advertising law defines the puffery defense categorically: claims “not capable of measurement” that “consumers would not take seriously.”
Not capable of measurement? Well, twice as fast is capable of measurement, as is half the price (which we already know was inaccurate; the 3G model is more expensive when you take into account the changes to the service plans).

Is this defense going to hold up? We'll have to see, but at least in the U.S. Apple hasn't had any ads banned; in the U.K. two have been banned.