Leonard v. Pepsico, Inc.

88 F.Supp.2d 116 (S.D.N.Y. 1999)

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Nature of the Case

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Facts

Pepsico (D) ran a promotional campaign to collect Pepsi Points in order to redeem them for Pepsi Stuff. A test promotion was conducted in October 1995 to March 1996 wherein a catalog was distributed to consumers in the test marketplace. Leonard (P) was a resident in the test marketplace. P saw the commercials for the promo and contends that they constituted a valid offer for a Harrier Jet. P alleges that the commercial, in fact, offered the opportunity to get a U.S. military Harrier jump jet for 7,000,000 Pepsi Points. P was so inspired by the commercial that he set out to get his own Harrier jump jet. When P got his catalog in order to be able to redeem his points, he noticed that the order entry form lacked the description of a Harrier jet. P rejects the contention that the implication that the item not being in the catalog means that it was unavailable. The rear fold out of the catalog contains directions for redeeming the Points for merchandise. The directions noted that merchandise may only be ordered with the original Order Form. It also notes that if the consumer lacks enough Points he may purchase additional Points for ten cents each, but at least 15 original Points must accompany each order. It soon became clear to P that he would not be able to buy or collect enough Points by his own consumption of the product. P decided that buying points would be a better option. P ultimately raised $700,000. P then submitted an order form with 15 Points and a check for $700,008.50. At the bottom of the form, P wrote in “1 Harrier Jet.” P was represented by attorneys as the check was drawn on an account of P’s first set of attorneys. P wrote in that the check was to purchase the points needed to expressly obtain a new Harrier jet as advertised in the commercial. D rejected the submission and returned the check. D noted in its rejection that the item that P ordered was not in the catalog and thus could not be purchased or redeemed. D also informed P that the commercial was fanciful and intended to be humorous and entertaining. D apologized for any misunderstanding. P refused the settlement offer of some free product and sued when D refused its formal demand to honor its offer. D moved for summary judgment.