Read the article, "John D.R. Leonard, Plaintiff, -against- PepsiCo, Inc., Defendant," found on the website provided in the Reading & Study folder. Watch the presentations (also found in the Reading &
Read the article, “John D.R. Leonard, Plaintiff, -against- PepsiCo, Inc., Defendant,” found on the website provided in the Reading & Study folder. Watch the presentations (also found in the Reading & Study folder) of the various versions of the commercial that gave rise to the case. Then answer the following questions:
1.The court ruled that the commercial was not an offer to enter into a contract. Explain the court’s reasoning and holding.
2.Do you agree or disagree? If you were the judge, how would you have ruled? Would the Christian worldview affect your reasoning?
88 F.Supp.2d 116 (1999)
John D.R. LEONARD, Plaintiff,
PEPSICO, INC., Defendant.
Nos. 96 Civ. 5320(KMW), 96 Civ. 9069(KMW).
United States District Court, S.D. New York.
August 5, 1999.
117*117 OPINION & ORDER
KIMBA M. WOOD, District Judge.
Plaintiff brought this action seeking, among other things, specific performance 118*118 of an
alleged offer of a Harrier Jet, featured in a television advertisement for defendant’s “Pepsi Stuff”
promotion. Defendant has moved for summary judgment pursuant to Federal Rule of Civil
Procedure 56. For the reasons stated below, defendant’s motion is granted.
This case arises out of a promotional campaign conducted by defendant, the producer and
distributor of the soft drinks Pepsi and Diet Pepsi. (See PepsiCo Inc.’s Rule 56.1 Statement
(“Def. Stat.”) ¶ 2.) 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. (See id. ¶¶ 4, 8.) Before introducing the promotion
nationally, defendant conducted a test of the promotion in the Pacific Northwest from October
1995 to March 1996. (See id. ¶¶ 5-6.) A Pepsi Stuff catalog was distributed to consumers in the
test market, including Washington State. (See id. ¶ 7.) Plaintiff is a resident of Seattle,
Washington. (See id. ¶ 3.) While living in Seattle, plaintiff saw the Pepsi Stuff commercial (see
id. ¶ 22) that he contends constituted an offer of a Harrier Jet.
A. The Alleged Offer
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,
Unlock Solution Unlocking…
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. (See Defendant’s Local Rule 56.1
Stat., Exh. A (the “Catalog”).)
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, 119*119 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. (See Catalog, at rear
foldout pages.) 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 “Order Form”)).
Conspicuously absent from the Order Form is any entry or description of a Harrier Jet. (See id.)
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
Show entire document