Thirsty for a fighter jet? Don't drink Pepsi.

Back from break and this is a little of a late start, but I will try to be better about keeping this updated more regularly. It could just be that there has been a lack of humorous cases this semester - constitutional law doesnt provide fodder for comedy, it turns out. But the following case is truly ridiculous and will hopefully make up for the fact that I have abandoned this blog for a couple of months.

The case: Leonard v. Pepsico.
Pepsi was trying out a promotional campaign in the Pacific Northwest and aired a "Pepsi Stuff" commercial. Remember pepsi stuff? or coke stuff? Or jackets you could get advertising Marlboro? I guess a lot of this still; exists. Though no one will admit to owning any of it. Anyway, Pepsi had a commercial on tv unveiling this promotional campaign and some crazy man in Seattle decided to take Pepsi to court because the item he wanted was not ACTUALLY available. What did he want? Ohhhh just wait. The issue in the case is whether the commercial constituted a valid offer (welcome to Contracts).

I don't think I could do a better job than the facts section of the case in communicating the utter absurdity of this lawsuit, so I am going to be doing some cutting and pasting, for your enjoyment. It's long but I promise it's worth it. If you're intrigued and have a little time on your hands, the full case can be found here:
http://faculty.law.pitt.edu/madison/contracts/supplement/leonard_v_pepsico.htm

Because whether the television commercial constituted an offer is the central question in this case, the Court will describe the commercial in detail. The commercial opens upon an idyllic, suburban morning, where the chirping of birds in sun-dappled trees welcomes a paperboy on his morning route. As the newspaper hits the stoop of a conventional two-story house, the tattoo of a military drum introduces the subtitle, "MONDAY 7:58 AM." The stirring strains of a martial air mark the appearance of a well-coiffed teenager preparing to leave for school, dressed in a shirt emblazoned with the Pepsi logo, a red- white-and-blue ball. While the teenager confidently preens, the military drumroll again sounds as the subtitle "T-SHIRT 75 PEPSI POINTS" scrolls across the screen. Bursting from his room, the teenager strides down the hallway wearing a leather jacket. The drumroll sounds again, as the subtitle "LEATHER JACKET 1450 PEPSI POINTS" appears. The teenager opens the door of his house and, unfazed by the glare of the early morning sunshine, puts on a pair of sunglasses. The drumroll then accompanies the subtitle "SHADES 175 PEPSI POINTS." A voiceover then intones, "Introducing the new Pepsi Stuff catalog," as the camera focuses on the cover of the catalog.^[2]

The scene then shifts to three young boys sitting in front of a high school building. The boy in the middle is intent on his Pepsi Stuff Catalog, while the boys on either side are each drinking Pepsi. The three boys gaze in awe at an object rushing overhead, as the military march builds to a crescendo. The Harrier Jet is not yet visible, but the observer senses the presence of a mighty plane as the extreme winds generated by its flight create a paper maelstrom in a classroom devoted to an otherwise dull physics lesson. Finally, the Harrier Jet swings into view and lands by the side of the school building, next to a bicycle rack. Several students run for cover, and the velocity of the wind strips one hapless faculty member down to his underwear. While the faculty member is being deprived of his dignity, the voiceover announces: "Now the more Pepsi you drink, the more great stuff you're gonna get."

The teenager opens the cockpit of the fighter and can be seen, helmetless, holding a Pepsi. "[L]ooking very pleased with himself," (Pl. Mem. at 3,) the teenager exclaims, "Sure beats the bus," and chortles. The military drumroll sounds a final time, as the following words appear: "HARRIER FIGHTER 7,000,000 PEPSI POINTS." A few seconds later, the following appears in more stylized script: "Drink Pepsi--Get Stuff." With that message, the music and the commercial end with a triumphant flourish.

Inspired by this commercial, plaintiff set out to obtain a Harrier Jet. Plaintiff explains that he is "typical of the 'Pepsi Generation' . . . he is young, has an adventurous spirit, and the notion of obtaining a Harrier Jet appealed to him enormously." (Pl. Mem. at 3.) Plaintiff consulted the Pepsi Stuff Catalog. The Catalog features youths dressed in Pepsi Stuff regalia or enjoying Pepsi Stuff accessories, such as "Blue Shades" ("As if you need another reason to look forward to sunny days."), "Pepsi Tees" ("Live in 'em. Laugh in 'em. Get in 'em."), "Bag of Balls" ("Three balls. One bag. No rules."), and "Pepsi Phone Card" ("Call your mom!"). The Catalog specifies the number of Pepsi Points required to obtain promotional merchandise. . . . The Catalog includes an Order Form which lists, on one side, fifty-three items of Pepsi Stuff merchandise redeemable for Pepsi Points. Conspicuously absent from the Order Form is any entry or description of a Harrier Jet. 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.")) to 3300 (for a "Fila Mountain Bike" ("Rugged. All-terrain. Exclusively for Pepsi.")). It should be noted that plaintiff objects to the implication that because an item was not shown in the Catalog, it was unavailable.

The rear foldout pages of the Catalog contain directions for redeeming Pepsi Points for merchandise. These directions note that merchandise may be ordered "only" with the original Order Form. The Catalog notes that in the event that a consumer lacks enough Pepsi Points to obtain a desired item, additional Pepsi Points may be purchased for ten cents each; however, at least fifteen original Pepsi Points must accompany each order.

Although plaintiff initially set out to collect 7,000,000 Pepsi Points by consuming Pepsi products, it soon became clear to him that he "would not be able to buy (let alone drink) enough Pepsi to collect the necessary Pepsi Points fast enough." Reevaluating his strategy, plaintiff "focused for the first time on the packaging materials in the Pepsi Stuff promotion," and realized that buying Pepsi Points would be a more promising option. Through acquaintances, plaintiff ultimately raised about $700,000.

B. Plaintiff's Efforts to Redeem the Alleged Offer

On or about March 27, 1996, plaintiff submitted an Order Form, fifteen original Pepsi Points, and a check for $700,008.50. 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. At the bottom of the Order Form, plaintiff wrote in "1 Harrier Jet" in the "Item" column and "7,000,000" in the "Total Points" column. In a letter accompanying his submission, plaintiff stated that the check was to purchase additional Pepsi Points "expressly for obtaining a new Harrier jet as advertised in your Pepsi Stuff commercial." . . .

Congrats if you made it this far. It's me again, not the court. I know it seems like I am avoiding writing an actual post by doing all this quoting, but come on... who comes up with this stuff? For example:
"The implication of the commercial is that Pepsi Stuff merchandise will inject drama and moment into hitherto unexceptional lives"
or
"the callow youth featured in the commercial is a highly improbable pilot, one who could barely be entrusted with the keys to his parents' car, much less the prize aircraft of the United States Marine Corps"

Were you wondering how much Pepsi 7,000,000 points actually amounts to? Don't worry, the court does the math for you:
"To amass that number of points, one would have to drink 7,000,000 Pepsis (or roughly 190 Pepsis a day for the next hundred years--an unlikely possibility)"

Thirsty? Drink up. But no Harrier Jet for you! Though can I interest you in some rockin' Pepsi shades? They're stylish AND won't bring on a lawsuit. Best of both worlds.

Me v. Orville Reddenbacher??

If torts is over, then why am I still thinking about it?

I took my four hour test this morning. It is now done and I can burn my outline if I want (though I put so much work into that damn thing... particularly with the colored markers...) and I was home while the sun was out so I made some popcorn... and in opening the package I noticed that the directions of how to pop it were written in english and spanish, and there were also pictures that showed you how to a) put into a microwave b) listen for the sound of popping c) open the package after. Immediately I thought "Hmm, I wonder if this came about through a products liability case where the warning was inadequate. After all, you need to have the right label for the consumers your product is aimed at, and this sometimes means that you needs visual imagery. I wonder if these pictures help people not burn themselves. I wonder what sort of popcorn accidents people have gotten into. Burned from the bag when opening it? There was no warning that listening with your head up to the microwave like that may lead some to develop brain cancer... necessary? negligent? Strict liability? AHHHH!!"

Will I ever be able to ignore warning labels again? I wonder.

The relevant facts

I love it when a case begins like this:

"The relevant facts are undisputed... All agree that Lake Tahoe is "uniquely beautiful," that president Clinton was right to call it a "national treasure that must be protected and preserved," and that Mark Twain aptly described the clarity of its waters as "not merely transparent, but dazzingly, brilliantly so."

I'm glad we all agree.
I also have to note that when you turn the page there is a full blown glossy color picture of Lake Tahoe (or so I assume because there is no caption). There has never been nor are there any other glossy pictures in my book. Though sometimes there are other random pictures, like a woman with her cat or, more recently, a full page portrait of Justice Holmes. Is this actually funny or have I just been reading casebooks for too long?

I wish I could say that it's things like this that get me through property. Unfortunately, it being finals, nothing gets me through anything anymore. MRwahhh.

What not to watch

I haven't written anything in a while. I know. Turns out there is a negative correlation between how funny cases seem and how close finals become. I just got home from attempting to find warm places to study all over this city (seriously - I sat in 5 places today) and I turned on the tv to zone out for a few minutes while I cooked some dinner. Even when I try to watch something dumb, the law finds me. This is the advertisement for a holiday movie that came on. You may think I am joking. I swear I am not.

Flashes of Melissa Joan Hart and Mario Lopez on screen. Marissa looks happy but in a crazed way that sort of says "I may still be a witch." Mario looks frightened yet confident in a "I am cooler than Zach Morris any decade" way.
Voiceover: "She's holding him hostage but he's stealing her heart!" Flashes of Melissa kidnapping Mario, smashing his cellphone so he can't call anyone, and locking him in a room. If there wasn't this upbeat music in the background you would think this was a new slasher flick. Flashes of her looking out the window lovingly at him playing in the snow, a la Belle in Beauty in the Beast when she cannot BELIEVE she is falling for a monster (Remember "there may be something there that wasn't there before?" Classic. What? What's there mama? I'll tell you when you're older, Chip! Sorry, Disney tangent).
Then we hear Mario joke "You know, a federal offense puts you on the naughty list this year!" Nevermind his phone has been smashed and he's locked out in the snow and he is stuck with Melizza Joan Hart. Alone.
Final Voiceover: "This Christmas, don't miss the ABC Family world premiere of Holiday in Handcuffs!!!"

Seriously.
Holiday in Handcuffs.
I'm speechless.

Puzzlemania

It recently dawned on me that if you didn't know much about law school and my blog was your only foray into the legal world, you might think "Wow, law school doesn't seem so bad! These cases are pretty interesting and so entertaining! What are all those "sleep deprived" students complaining about?

In preemptive response, here is an excerpt from my civil procedure reading from this week. You'll notice that none of the cases I have discussed to date have anything to do with civpro. This might explain why.

"This controversy questions the constitutional sufficiency of notice to beneficiaries on judicial settlement of accounts by the trustee of a common trust fund established under the New York Banking Law, Consol. Laws. c. 2. The New York Court of Appeals considered and overruled objections that the statutory notice contravenes requirements of the Fourteenth Amendment and that by allowance of the account beneficiaries were deprived of property without due process of law. The case is here on appeal under 28 U.S.C. § 1257."

Hopefully this has not driven you to never read this blog again. Sorry for inflicting my pain on you. But when you are stuck in the library reading 80 pages of this stuff for the week, you sort of start to lose it. At first I though civpro was going to be like a puzzle and that yeah, it was tough at first but once we got more pieces it would all start to come together. What has happened though is that we HAVE gotten more pieces (too many) but those pieces are all upside down - cardboard side up. And every time you THINK you may have fit two of those pieces together, along comes a child or a dog, or another chapter and messes the whole thing up.

I could go on with this analogy. It's a lot more interesting to me than long arm statutes. But my puzzle calls...

Death by silverware

More trouble in the neighborhood. This time, we're looking at a criminal case, not just a dispute over property. The Abbotts and the Scaranos of New Jersey shared a common driveway. The Scaranos were having their driveway paved and Abbott obtained some asphalt from the paving to keep his door from swinging onto his neighbor's property. I thought this was pretty nice of him. But Nicholas, son of the Scaranos, did not see things from my angle and suddenly he and Abbott are in a fist fight.
If this was it, the case would still be pretty random. A fistfight over some asphalt? Calm down, boys! But it gets better. Nicholas's dad sees the fistfight and then came at Abbott with a hatchet. Nicholas's mom followed, "armed with a carving knife and a large fork." Can you imagine that procession? Hatchet, carving knife, large fork. Where did they get their weapons, a garage sale???

And do you know what happened in the end? ALL THREE SCARANOS were hit by the hatchet! That'll teach you from wielding cutlery at your neighbors over asphalt. GRahhh.

These are the people in your neighborhood...

This morning I am learning about easements, estoppels, and other incredibly exciting property concepts. In one case, from 1938, neighbors are (again) fighting because of a sewage drain that runs under their respective properties. The case makes note that the plaintiff is upset that her basement flooded with 6-8 inches of sewage and filth from the pipe that runs under his property. Ok, that sucks, but it's not like his neighbors were actually coming onto his land personally and dumping sewage right?
Not according to the footnote!
"Professor Vetter reports that several residents of Chanute have told him stories about [the plaintiff] and [defendant] dumping buckets of sewage on each other's front porch."

Enjoy your breakfast.