But Goldman Sachs tried it anyway in Richman v Goldman Sachs, 2012 US Dist LEXIS 86556 (SDNY, 21 June 2012), a class action over alleged failures of disclosure in the marketing of collateralised debt obligations (CDOs). Buyers of the CDOs claimed that Goldman marketed products it knew would perform poorly or fail, while itself betting that they would do exactly that; failed to disclose SEC enforcement investigations into various CDO transactions; and made material misstatements in disclosure documents. Goldman contended that the representations it had made about its honesty, integrity and extensive policies on conflicts of interest were not actionable because they were mere puffery, which no one would rely on.

Crotty J thought this ‘Orwellian’ and, if true, a sign that ‘the world of finance may be in more trouble than we recognize.’ He refused to dismiss the plaintiffs’ claims that the firm had made material misstatements about its business practices and that it did so knowing the statements were untrue.