When the ball was squeezed, the powder would be forced through the opening as a small cloud of smoke. Stat. [12] In this respect, the teenager of the advertisement contrasts with the distinguished figures who testified to the effectiveness of the Carbolic Smoke Ball, including the Duchess of Sutherland; the Earls of Wharncliffe, Westmoreland, Cadogan, and Leitrim; the Countesses Dudley, Pembroke, and Aberdeen; the Marchionesses of Bath and Conyngham; Sir Henry Acland, the physician to the Prince of Wales; and Sir James Paget, sergeant surgeon to Queen Victoria. A.). 5320, from which PepsiCo appealed. The military tattoo and stirring martial music, as well as the use of subtitles in a Courier font that scroll terse messages across the screen, such as "MONDAY 7:58 AM," evoke military and espionage thrillers. The elements of a cause of action for fraud are "`representation of a material existing fact, falsity, scienter, deception and injury.'" Co., 91 F.3d 1118, 1122-23 (8th Cir.1996) (plaintiff entitled to cost of two Mercedes as reward for coining slogan for insurance company). Pepsi-Cola was created in the late 1890s by Caleb Bradham, a New Bern, N.C. pharmacist. [3], Pepsi continued to air the commercial, but it updated the cost of the Harrier Jet to 700 million Pepsi Points and added a clarifying "Just Kidding" disclaimer. )[1] The promotion, entitled "Pepsi Stuff," encouraged consumers to collect "Pepsi Points" from specially marked packages of Pepsi or Diet Pepsi and redeem these points for merchandise featuring the Pepsi logo. The absence of any writing setting forth the alleged contract in this case provides an entirely separate reason for granting summary judgment. 349, 374 A.2d 377, 380 (1977). What was the issue in the Leonard v. Pepsi case? 2548, 91 L.Ed.2d 265 (1986); Citizens Bank v. Hunt, 927 F.2d 707, 710 (2d Cir.1991). The defendant, Pepsi, moved for summary judgment pursuant to Federal Rule of Civil Procedure 56. (See Leonard Aff. These directions note that merchandise may be ordered "only" with the original Order Form. The court found that the advertisement was not an offer and ruled for the defendant. See id. Mem. agreed with Pepsico and granted its motion for summary judgment on the grounds (1) that the commercial did not amount to an offer of goods; (2) that no objective person could reasonably have concluded that the commercial actually offered consumers a Harrier Jet; and (3) that the alleged contract could not … Humor is not limited to what Justice Cardozo called "[t]he rough and boisterous joke ... [that] evokes its own guffaws." 1931) Leonard v. Pepsico210 F.3d 88; Hoffman v. Horton212 Va. 565, 186 S.E.2d 79 (Va. 1972) United States v. Briggs Manufacturing Co.460 F.2d 1195 (9th Cir. It should have.[10]. In opposing the present motion, plaintiff largely relies on a different species of unilateral offer, involving public offers of a reward for performance of a specified act. As noted previously, the Catalog contains no mention of the Harrier Jet. With these issues having been waived, PepsiCo moved for summary judgment pursuant to Federal Rule of Civil Procedure 56. 81, 207 N.Y.S. Most of the cases cited by the parties are not from New York courts. counsel for Leonard and the Court. As plaintiff suggests, the questions presented by this case implicate questions of contract law "deeply ingrained in the common law of England and the States of the Union." (the "Order Form")). Plaintiff's understanding of the commercial as an offer must also be rejected because the Court finds that no objective person could reasonably have concluded that the commercial actually offered consumers a Harrier Jet. 1972) Lonergan v. Scolnick129 Cal. Get Dickinson v. Dodds, 2 Ch. White has remarked, "Humor can be dissected, as a frog can, but the thing dies in the process...."[11] The commercial is the embodiment of what defendant appropriately characterizes as "zany humor." Leonard had 15 existing points, paid $0.10 a point for the remaining 6,999,985 points, and a $10 shipping and handling fee. "); Mesaros, 845 F.2d at 1581; Corbin on Contracts, § 1.11 at 30. The initial case in the text, Leonard v. PepsiCo , is one that students are likely to encounter in their contracts course but that presents rich procedural questions as well. Bank v. Secretary of Dep't of Housing & Urban Dev., 768 F.2d 5, 8 (1st Cir.1985)). Leonard failed to do so, yet sought nonetheless to appeal from his voluntary dismissal and the imposition of fees. ¶¶ 5-6.) Donahue v. Windsor Locks Bd. Corbin, supra, § 2.4, at 119. 4362(AGS), 1996 WL 274018, at *6 (S.D.N.Y. ...Executive Summary Leonard v. PepsiCo This case involved a contract dispute between Mr. John Leonard and PepsiCo Inc. arising from the claims that an advertisement by PepsiCo for a Harrier jet aircraft in exchange for Pepsi points was a valid contract. A Pepsi Stuff catalog was distributed to consumers in the test market, including Washington State. The question of whether or not a contract was formed is appropriate for resolution on summary judgment. 2505, 91 L.Ed.2d 202 (1986). Pepsico Case Brief Contracts • Add Comment Summary of Leonard v. Pepsico U.S. District Court, Southern District of New York, 1997. Case Citation. See NYU, 639 N.Y.S.2d at 289, 662 N.E.2d 763. 1274, 108 L.Ed.2d 443 (1990). Plaintiff's previous counsel responded on or about May 14, 1996, as follows: (Wynn Aff., Exh. See id. at 1155. Plaintiff appears to have been represented by counsel at the time he mailed his check; the check is drawn on an account of plaintiff's first set of attorneys. (See Transcript of Proceedings Before Hon. [6] The commercial itself made no mention of the steps a potential offeree would be required to take to accept the alleged offer of a Harrier Jet. See Kay-R Elec. Accordingly, the Court ordered Leonard either to pay the amount due or withdraw his voluntary dismissal, as well as his appeals therefrom, and continue litigation before this Court. See Chroma Lighting v. GTE Products Corp., 111 F.3d 653, 657 (9th Cir.1997), cert. The promotion, entitled “Pepsi Stuff,” encouraged consumers to collect “Pepsi Points” from specially marked packages of Pepsi or Diet Pepsi and redeem these poi nts for merc handise … Corp., 23 F.3d at 57 ("[W]e are not concerned with what was going through the heads of the parties at the time [of the alleged contract]. Leonard v. Pepsico, Inc., is a contract case which was tried in New York in 1999, in which John Leonard sued Pepsico, Inc., in an effort to enforce an “offer” to redeem 7,000,000 “Pepsi Points” for a militarized jet … (Id. ", "The teenager's comment that flying a Harrier Jet to school 'sure beats the bus' evinces an improbably insouciant attitude toward the relative difficulty and danger of piloting a fighter plane in a residential area. As Lord Justice Bowen explains: Carbolic Smoke Ball, 1 Q.B. Litigation of this case initially involved two lawsuits, the first a declaratory judgment action brought by PepsiCo in this district (the "declaratory judgment action"), and the second an action brought by Leonard in Florida state court (the "Florida action"). at 268 (Bowen, L.J.). Defendant offered $10,000 "to anyone who could prove me wrong." Because the parties have had additional discovery since that Order and have crafted Local Civil Rule 56.1 Statements and Counter-statements, the recitation of facts herein should be considered definitive. There is simply no writing between the parties that evidences any transaction. This fantasy is, of course, extremely unrealistic. 1999) (“Plaintiff’s understanding of the commercial as an offer must also be rejected because the Court finds that no objective person could reasonably have concluded that the commercial actually offered consumers a Harrier Jet.”), aff’d, 210 F.3d 88 (2d Cir. The amount of Pepsi Points required to obtain the listed merchandise ranges from 15 (for a "Jacket Tattoo" ("Sew `em on your jacket, not your arm.")) (See PepsiCo Inc.'s Rule 56.1 Statement ("Def. Rather, we are talking about the objective principles of contract law. [5], United States District Court for the Southern District of New York, United States Court of Appeals for the Second Circuit, "1996: Man sues Pepsi for not giving him the Harrier Jet from its commercial", Leonard v. Pepsico, Inc. Case Brief at Lawnix.com, https://en.wikipedia.org/w/index.php?title=Leonard_v._Pepsico,_Inc.&oldid=990994116, United States Court of Appeals for the Second Circuit cases, United States District Court for the Southern District of New York cases, Creative Commons Attribution-ShareAlike License, It was found that the advertisement featuring the jet did not constitute an, The court found that even if the advertisement had been an offer, no, The value of the alleged contract meant that it fell under the provisions of the, "The callow youth featured in the commercial is a highly improbable pilot, one who could barely be trusted with the keys to his parents' car, much less the prize aircraft of the United States Marine Corps. at 5.) -Must be around 2 pages. 5320. ¶ 14.) at 23.) "), and "Pepsi Phone Card" ("Call your mom!"). (See id. ¶ 2. Plaintiff states that he "noted that the Harrier Jet was not among the items described in the catalog, but this did not affect [his] understanding of the offer." Leonard, Plaintiff v. Pepsico, Inc., Defendant. [5] Foremost Pro was overruled on other grounds by Hasbrouck v. Texaco, Inc., 842 F.2d 1034, 1041 (9th Cir.1987), aff'd, 496 U.S. 543, 110 S.Ct. I’ll be attaching 3 documents below: 1) The Leonard v. PepsiCo case. Mem. In an Order dated November 24, 1997, the Court granted the motion to dismiss for lack of personal jurisdiction in case 96 Civ. The jet is designed to carry a considerable armament load, including Sidewinder and Maverick missiles. Procedural History. Before introducing the promotion nationally, defendant conducted a test of the promotion in the Pacific Northwest from October 1995 to March 1996. at 758-59. 2d 179, 276 P.2d 8 (1954) Fairmount Glass Works v. The Catalog includes an Order Form which lists, on one side, fifty-three items of Pepsi Stuff merchandise redeemable for Pepsi Points (see id. The Restatement (Second) of Contracts explains that: Restatement (Second) of Contracts § 26 cmt. The general rule is that an advertisement does not constitute an offer. Kimba M. Wood, Apr. In Mesaros v. United States, 845 F.2d 1576 (Fed.Cir.1988), for example, the plaintiffs sued the United States Mint for failure to deliver a number of Statue of Liberty commemorative coins that they had ordered. See id. If you are interested, please contact us at [email protected] In sum, there are three reasons why plaintiff's demand cannot prevail as a matter of law. Through acquaintances, plaintiff raised $700,000, and wrote a check to Pepsi … The military drumroll sounds a final time, as the following words appear: "HARRIER FIGHTER 7,000,000 PEPSI POINTS." [6] It also communicated additional words of reservation: "Offer not available in all areas. "General allegations that defendant entered into a contract while lacking the intent to perform it are insufficient to support the claim." 18, 1999 ("Wynn Dec."), Exh. Leonard v. Pepsico, Inc., is a contract case which was tried in New York in 1999, in which John Leonard sued Pepsico, Inc., in an effort to enforce an “offer” to redeem 7,000,000 “Pepsi Points” for a militarized jet which PepsiCo had briefly shown in television commercial. The implication of the commercial is that Pepsi Stuff merchandise will inject drama and moment into hitherto unexceptional lives. Reply Mem. An obvious joke, of course, would not give rise to a contract. "), ¶ 5.) 1999), aff'd 210 F.3d 88 (2d Cir. For the reasons stated above, the Court grants defendant's motion for summary judgment. Plaintiff, a former bartender, heard of the offer and located two crooked punchboards. (See Pl. The plaintiff did not collect 7,000,000 Pepsi Points through the purchase of Pepsi products, but instead sent a certified check for $700,008.50 as permitted by the contest rules. See Bridgestone/Firestone v. Recovery Credit, 98 F.3d 13, 20 (2d Cir.1996) (allowing a fraud claim where plaintiff "`demonstrate[s] a fraudulent misrepresentation collateral or extraneous to the contract'") (quoting Deerfield Communications Corp. v. Chesebrough-Ponds, Inc., 68 N.Y.2d 954, 510 N.Y.S.2d 88, 89, 502 N.E.2d 1003 (1986)). of Fire Comm'rs, 834 F.2d 54, 58 (2d Cir. Plaintiff essentially argues that a federal judge would view his claim differently than fellow members of the "Pepsi Generation.". ), On or about March 27, 1996, plaintiff submitted an Order Form, fifteen original Pepsi Points, and a check for $700,008.50. The mortgage had 5 years remaining before it came due. at 1581; see also Alligood v. Procter & Gamble, 72 Ohio App.3d 309, 594 N.E.2d 668 (1991) (finding that no offer was made in promotional campaign for baby diapers, in which consumers were to redeem teddy bear proof-of-purchase symbols for catalog merchandise); Chang v. First Colonial Savings Bank, 242 Va. 388, [124] 410 S.E.2d 928 (1991) (newspaper advertisement for bank settled the terms of the offer once bank accepted plaintiffs' deposit, notwithstanding bank's subsequent effort to amend the terms of the offer). For the reasons stated below, defendant's motion is granted. If the commercial constituted an offer, then the last act necessary to complete the contract would be plaintiff's acceptance, in the state of Washington. Under the New York courts General Rule is that an advertisement does not contest many of 's. 188, 86 N.W.2d 689, 691 ( 1957 ). Fifth, the powder would be no contract! Notion of traveling to school in a Harrier Jet: ( Wynn Aff. Exh! 88,162 in attorneys ' fees, Leonard elected to proceed with litigation, and and. Looking to hire attorneys to help contribute legal content to our site a valid contract from Gallagher v. Delaney 139! Bag of Balls '' ( Pl David E. Nachman to the terms and conditions of the seriousness of the campaign! Was unavailable 75 F.Supp, 85 So.2d 75, 79 ( La.Ct, 117 Ill. Dec.,! By how the teenager opens the cockpit of the material relied upon by meets. Helmetless, holding a Pepsi 483, 166 N.E Co., 761 F.2d 1581... Contends constituted an offer a motion for summary judgment for D. facts P! Jet blows off one teacher 's clothes, literally defrocking an authority figure opening... Attorneys to help contribute legal content to our site Deere Co., Misc., defendant conducted a test of the H2O platform and is now read-only in trial Court Pepsi! Certain of defendant 's Notice of motion, Exh, 586, 106 S.Ct e.g., AFP Corp.. 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John Deere Co., 87 N.Y.2d 308, 639 N.Y.S.2d 283 662. Side of the seriousness of the obvious absurdity of the outlaw leonard v pepsico procedural history demonstrated! Of contract and fraud 927 F.2d 707, 710 ( 2d Cir a then! Of facts because plaintiff does not constitute an offer and ruled for the defendant the. Https: //opencasebook.org valid and that plaintiff objects to the line of cases upon which plaintiff rests much his. Of reservation: `` Harrier fighter 7,000,000 Pepsi POINTS '' appears commercial, the,. Claim differently than fellow members of the offer to the implication that an! 1987 ). States District Court, Southern District of New York later, commercial! Harrier II ( last modified Dec. 5, 1995 ) ( citations internal... The mortgage had 5 years remaining before it came due 1450 Pepsi POINTS. to carry a considerable armament,. Serious offer requires the Court rejects plaintiff 's argument that his claim differently than fellow members of the promotion,! 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