Opinion
Civil Action No. 3:98-CV-362-H
August 18, 1999.
MEMORANDUM OPINION
Not all frustrations and misunderstandings deserve to be made into lawsuits. To have disposed of this case with nothing more a than a terse statement that Mrs. Norman's claims are utterly without merit would provide an exclamation point to this truism. The judicial way, however, is often to explain at some length what is otherwise quite clear. Plaintiff's claim, for the reasons stated below, is without any merit and will be dismissed.
I.
In May of 1997, Mrs. Gladys Norman purchased a normal, one-pound package of peanut MM's. In that package, she found a single unevenly-colored, dull-gray MM's. She believed that this unusual MM's was the "imposter" MM's advertised in a 1997 Mars, Inc., contest which promised $1,000,000 to the person who found gray-colored candy. In her excitement, Mrs. Norman told her relatives and her co-workers of her discovery. Unfortunately, she shortly learned that Mars did not consider her the contest winner because, as she came to understand, one needed a special contest package to claim a prize. Previously, she had bought contest packages, but on that particular occasion in May, she had hurried through the Rite-Aid store in search of hair spray and quickly grabbed the first package of candy that came to hand. It was not a special contest package.
According to Mars, "an MM's" is the proper way to refer to a single piece of the candy, however strange it sounds or looks in print.
Mrs. Norman began to believe, however, that Mars had defrauded her by luring her into buying MM's with the promise of a lavish prize. From Mrs. Norman's point of view, Mars refused to honor the promise of its advertising. Unfortunately, she found an attorney willing to file a lawsuit. In the complaint, Mrs. Norman claimed that Mars violated the Kentucky Consumer Protection Act by designing its MM's packages in a deceptive, false, and misleading manner designed to lead consumers into purchasing the product under the belief that anyone finding a gray MM's piece would win $1,000,000 instantly. Mrs. Norman further claimed that Mars breached a contractual promise to pay her $1,000,000 if she found a gray MM's. Mars removed the case to federal court and now moves for judgment without the need for a trial.
As for all summary judgment motions in federal court, the decision to grant summary judgment is governed by the federal rules and by federal cases interpreting those rules, not Kentucky law as erroneously suggested by Mrs. Norman's attorney. See Gafford v. General Elec. Co., 997 F.2d 150, 165-66 (6th Cir. 1993).
II.
Looking first at Mrs. Norman's claim under the Consumer Protection Act, the Court finds nothing deceptive, false, or misleading about Mars' conduct. For instance, Mrs. Norman does not argue that Mars refused to award a prize to a winning contestant, she does not argue that Mars advertised many prizes and then awarded only a few, nor does she argue that Mars otherwise made prizes sound more attractive than they really were. Basically, Mrs. Norman contends that Mars' advertising worked — it led her to buy MM's. Her problem is that she did not win even though she found an unusually-colored MM's which she believed to be an "imposter." Mrs. Norman does not offer any evidence that Mars speaks anything but the truth when the company explains that her MM's is a manufacturing mistake — an MM's that failed to receive proper coloring.Indeed, the goal of advertising and packaging is to convince consumers to purchase a product. These techniques step over the line when they promise something and do not deliver. In this case, Mars prominently announced its intention to give away $1,000,000 and other prizes to the people who found gray MM's. The front of each contest package announced in large print: "Find the Imposter MM's" and "Win $1,000,000 Instantly." Below those tempting statements, in smaller print, appeared the phrase: "SEE GAME PIECE AND DETAILS ON BACK."
Of course, Mars used the contest rules on the back of each contest package to describe the exact terms of the giveaway. These rules explained that contestants needed to obtain official game pieces either from contest packages of MM's or through the mail from Mars under the ubiquitous no-purchase-necessary option. The rules further provided that the game pieces would announce various prizes: a six-month supply of MM's, a year's supply of MM's, or a single grand prize of $1,000,000. In addition, the rules provided that contestants needed to present winning game pieces in a specific manner to claim their prizes. If contestants obtained winning game pieces from MM's contest packages, the packages contained approximately one-half normal, multi-colored MM's and approximately one-half special, gray-colored, but otherwise normal-looking, MM's. Upon a careful reading of the rules, one learned that the "imposter" MM's were fundamentally irrelevant and that the winning game pieces were crucial. In other words, the game rules made the contest slightly less exciting than suggested by the enticing description on the front of each package. The concept of "imposter" MM's just made for good advertising. Critically, however, the actual rules of the contest did not conflict with, or undermine, the advertising description.
If Mars had hidden the game rules or had used advertising to mislead consumers about the nature of the contest, then different issues might come to the fore. In fact, Mrs. Norman does not contend that the company hid the rules. She admits simply that she did not read or know the rules. She believes that the rules are irrelevant given the more obvious advertising involving the gray MM's. Her belief on this point is unreasonable.
See Freeman v. Time, Inc., 68 F.3d 285, 289-90 (9th Cir. 1995) ("The promotions expressly and repeatedly state the conditions which must be met in order to win. None of the qualifying language is hidden or unreasonably small. The qualifying language appears immediately next to the representation it qualifies and no reasonable reader could ignore it. . . . Any ambiguity that [the plaintiff] might read into any particular statement is dispelled by the promotion as a whole."); Martin v. Coca-Cola Co., 785 F. Supp. 3, 4 (D.D.C. 1992) (dismissing as "nothing short of preposterous" the plaintiff's claim based on an alleged misstatement on the label of a Diet Coke bottle because the coupon on the back of label provided truthful elaboration and qualification).
The flaws in her reasoning become clear if one takes a moment to consider all of the commonly accepted advertising fictions on display in the "imposter" MM's contest. First of all, the contest purports to deliver an "instant" prize. Obviously, the grand prize package of MM's did not contain $1,000,000 in cash. The term instant meant only that finding the grand prize game piece immediately created a qualified right to the grand prize. The contestant did not need to enter an additional drawing or contest unless, somehow, too many grand prize pieces were printed and then submitted by contestants. Furthermore, winning contestants needed to mail the game piece by a deadline and in a specified manner to the contest administrators. Additionally, the grand prize winner needed to provide certain identification and sign certain documentation. Only after the fulfillment of these various formalities would a winning contestant receive a prize.
Given all these qualifications, one might ask why the word "instant" was not deceptive, false, misleading, or even an outright lie. The answer lies in common knowledge. Every reasonable person even just slightly familiar with such giveaways knows that cans of soda and packages of candy do not contain fortunes in cash. In addition, reasonable consumers know that contests often involve elaborate though reasonable rules that entrants must observe to the letter. These various procedures have a valid purpose: to ensure that alleged winners possess valid claims. Equally as important, and on a more practical level, these practices prevent the widespread theft of the contest product from store shelves. In other words, no reasonable contestant in the MM's contest would have expected to receive a large monetary prize literally "instantly."
The same line of thinking applies to Mars' offer of $1,000,000. The rules state that the grand prize winner would receive an annuity of $50,000 per year for twenty years without any interest. Simple multiplication shows that the winner would receive a total of $1,000,000; but after twenty years, this windfall hardly seems "instant." In other words, if the word "instant" applies to anything at all, it tenuously relates to the process of winning, not to the delivery of the full prize. Finally, as anyone familiar with the time value of money knows, $50,000 per year for twenty years is worth much less than $1,000,000 right now.
Again, one might want to know why the promise of $1,000,000 is not deceptive or misleading, even if it is not strictly true. And, once again, the answer lies in common knowledge and reasonable expectations. Given the prevalence of lotteries and sweepstakes, the average consumer knows what it means to take the "lump sum" option. It means that rather than expecting the full, advertised value of the contest spread out over many years, the contestant wants the present value of the ultimate payout. In other words, reasonable people know that many such contests advertise the cumulative cash amount of many annuity payments rather than current value of the prize. Because of this common knowledge, such advertising is not deceptive or misleading, even if it does involve some level of fantasy.
Where does all of this lead? The fundamental point is that no reasonable person believes that every word of advertising, and especially every word of a contest announcement, is literally true. Everyone knows that advertising exaggerates the positive and downplays the negative. Only when these overstatements or understatements go too far do they become illegal. In this case, Mars engaged in nothing more than the most common and unremarkable promotion.
Mars included detailed rules with each contest package. These rules did clarify and qualify the terms of the contest. Importantly, however, the rules on the back of each contest package remained basically true to the loose description of the giveaway on the front. As far as the Court knows, Mars gave away the prizes approximately as promised. Because Mars' advertising contained nothing but familiar hyperbole, because the detailed rules paralleled the short description of the contest without any serious discrepancy, and because no evidence suggests that Mars failed to live up to the promises of the rules, this Court concludes that Mrs. Norman fails to offer any facts or reasons to believe that Mars violated the Kentucky Consumer Protection Act.
See Workmon v. Publishers Clearing House, 118 F.3d 457, 458-59 (6th Cir. 1997) (affirming summary judgment on Michigan Consumer Protection Act claim on the grounds that plaintiffs have "no remedy for a trade practice that is confusing only to an unreasonable person").
Mrs. Norman may well have felt misled or deceived into thinking that she had won the contest, but Mars is not to blame for that confusion. Mars' only mistake was to allow a single discolored MM's into the package purchased by Mrs. Norman. This exceedingly insignificant quality control problem seems completely unworthy of comment. Mars made every attempt to avoid any chaos in the "imposter" MM's contest by using the redundant winning game pieces in combination with the gray MM's. The company's plan prevented a contestant eating candy while watching a movie from inadvertently consuming a piece of candy worth $1,000,000. In sum, Mrs. Norman convinced herself that she had found a genuine gray, "imposter" MM's when she had found no more than a defective, vaguely-gray-colored MM's. Mrs. Norman jumped to the conclusion that she had found an "imposter" MM's because of the unfortunate timing of her discovery. If Mrs. Norman had found the strangely-colored MM's a year earlier or a year later, this case would not exist. The Court fails to see how under these circumstances Mars could be said to have committed any sort of misconduct, much less deception or fraud.
Indeed, the caselaw establishes that even delays or mistakes by the defendant, absent more abusive conduct, do not constitute violations of the Consumer Protection Law. See Red Bird Motors, Inc. v. Endsley, 657 S.W.2d 954 (Ky.Ct.App. 1983); Wahba v. Don Corlett Motors, Inc., 573 S.W.2d 357 (Ky.Ct.App. 1978).
III.
The essence of Mrs. Norman's contract claim is that Mars failed to honor its promise to pay $1,000,000 to anyone who found a gray MM's. Contract law recognizes promises such as the one alleged by Mrs. Norman. Two problems stand in the path of Mrs. Norman's claim, however: first, she misconceives the terms of Mars' offer; and, second, even if she correctly states the terms of the offer, she did not perform her end of the bargain as requested by Mars.Mars did not ever make the contractual offer alleged by Mrs. Norman. The company never offered to pay $1,000,000 to anyone who found a gray MM's. Instead, the company carefully launched an "imposter" MM's contest that involved gray MM's. The rules of that contest clearly required a winning game piece. No reasonable person would expect that a major corporation would give away $1,000,000 without providing some level of specific detail about the contest. To ignore the rules was to disregard the terms of Mars' offer.
See Robertson v. United States, 343 U.S. 711, 713 (1952) ("The acceptance by contestants of the offer tendered by the sponsor of the contest creates an enforceable contract."); National Amateur Bowlers, Inc. v. Tassos, 715 F. Supp. 323, 325 (D. Kan. 1989) ("The rights of a contestant who has performed the act required in the promoter's offer are limited . . . by the terms of the offer, i.e., by the conditions and rules of the contest.").
Mars' offer of a contract was clear, though somewhat complex. Mars announced the contract by stating "Find the Imposter MM's" and "Win $1,000,000 Instantly," but the company immediately added "SEE GAME PIECE AND DETAILS ON BACK." Mars then provided the rules of the giveaway on the back of each package. Every reasonable person would expect a level of elaboration similar to that provided in the MM's contest rules. As a contestant, one should know not only the grand prize but also the rules of the game: Does one need proof of purchase? Does one need to buy before a certain date? Does one need a specially-marked package?
Accordingly, the Court finds that while Mars perhaps did make a unilateral offer of a contract to Mrs. Norman and many others, the terms of that offer were contained with precision in the rules that Mrs. Norman admits she did not know. Those rules provide that Mrs. Norman won no prize because she did not obtain a winning game piece.
Indeed, this case seems remarkably similar to Workmon v. Publishers Clearing House, 118 F.3d 457 (6th Cir. 1997), in which the Sixth Circuit construed Michigan contract law and explained that the announcement of a contest does not create a contract. Instead, according to Workmon, the rules and all disclaimers taken together create only an offer of participation in a giveaway. The Workmon panel explained that no reasonable person would assume that he or she had won a prize without reading all the contest rules. See id. at 459.
Even if the contest really did exist as imagined by Mrs. Norman, she did not win because she did not find a genuine "imposter." Instead, she found nothing more than a mistake. For purposes of a $1,000,000 giveaway, it would be absurd to expect a company to hand out the entire grand prize to someone who presented a bogus gray MM's rather than one of the specially-produced, prize-winning candies. If Mrs. Norman were on the other end of this hypothetical case — if she possessed a real "imposter" MM's and could not receive the prize outright because of someone else who submitted an ersatz "imposter" — she no doubt would appreciate the injustice of her current position.
IV.
The primary lesson from this case should be one which everyone, including Mrs. Norman's attorney, should take to heart. The standards of the legal profession require attorneys to counsel their clients about the difference between the disappointments of life and legal wrongs realistically capable of remedy through the judicial system. When attorneys fail to observe these various duties, they risk sanction. In this case, Mrs. Norman and her lawyer should consider themselves fortunate to escape with only a defeat, rather than with the added obligation of a court order to pay Mars' legal fees and a penalty. Considering the absurdity of the claims, Defendant's responses were commendably restrained.
The Court shall enter an order consistent with this Memorandum Opinion.
ORDER
IT IS HEREBY ORDERED that Defendant's Motion for Summary Judgment is SUSTAINED and Plaintiff's claims are DISMISSED WITH PREJUDICE.
This is a final and appealable order.