The time Pepsi got sued for a $33M fighter jet | Hacker News Reader

The time Pepsi got sued for a $33M fighter jet

thehustle.co

181 pointsAnon84168 comments

The (IMHO wonderful) film Real Genius riffed on the real-world examples of people trying to exploit corporate sweepstakes:

"When Lazlo Hollyfeld (Jon Gries) sends in a large number of entries to the Frito-Lay contest, he is mirroring the actions of Caltech students Steve Klein, Dave Novikoff and Barry Megdal, who, in 1974, used a similar strategy to win a McDonald's sweepstakes. Their entries came to roughly 1/5th of the total entries and won them a station wagon, $3,000 cash and $1,500 in food gift certificates."

"It said enter as often as you like, so I did."

When I was in college, a local pizza place had an online contest for “free pizza” for a year and said you could enter as many times as you like. I wrote a quick python script to fill out the form with my info that would submit it every 30 second. I got a call from the pizza place a few days later asking me to stop. They said that I was 90% of the entries and that I wasn’t acting in good faith. They offered me $100 gift card and I was happy with that.

Seems like a reasonable solution there. Nice to see it resolved to everyone's satisfaction.

I did a similar thing back in college at [insert fast food franchise name].

One branch I went had a poster that roughly says "enter our mobile app survey and get a free meal", so I connect to their public wifi, downloaded it, enter the survey, and got a text message that can be exchanged on the cashier for some decent fries and other stuff. Later I learned that the app limits one submission per device per day, so few days later I start bringing friends to submit on their phones and got ourselves a free lunch. We did this once or twice a week so the manager doesn't get suspicious.

Then one time I accidentally got disconnected to the wifi after submitting, tried reopening the app and to my surprise, it allowed me to submit again. I guessed that they limit submission per IP address, so I tried reconnecting to the wifi and the app limits me like before. Me being curious, tried using a VPN and it didn't limit me both on wifi and mobile data, so that means I can do four submissions per day per device. Imagine how many meals I can get.

Few months later, the poster was removed, then later I learned that it was also removed on every branch in the city. The app just shows a blank white screen. Today I tried downloading the app and it still shows nothing.

> Imagine how many meals I can get.

Over the medium term, not significantly more than the (stupid, but apparently intended) limit of 1/day, rate limited not by technical but by biological means.

I did something at MIT where some place was offering free personal pizzas (delivered!), and it seems their logic was one pizza per /phone number/, that they would call upon arrival with the pizza, so I went around campus and set up several classroom phones (which nobody uses no receive calls anyway) to forward calls to my dorm room's analog phone line, which fortunately you could do just by dialing some codes on the phone.

Totally unrelated, but assuming that 90% is meant here as an actual estimation and not just as a shorthand for "overwhelming majority", that comes out to one submission every five minutes, which is a lot more than I would expect a local promotion to get! Genuinely good job marking, pizza place

I liked the case where someone bought 12,000 cups of pudding to get 1.2M frequent flyer miles. https://en.wikipedia.org/wiki/David_Phillips_(entrepreneur)

The Hoover Free Flights Promotion linked from there is an astonishing example of corporate stupidity

https://en.wikipedia.org/wiki/Hoover_free_flights_promotion#...

In that case however, it was a company trying to scam customers by making it nearly impossible to actually benefit from the promotion. No idea how someone thought that an established brand would benefit from burning their reputation for a one-time sales boost.

Several of the incidents in the movie happened at Caltech. Putting a water slide in the dorm, for example.

RG was one of the few Hollywood productions that Caltech refused to allow on campus. So they found some other buildings in the same style.

They still hired Caltech students as extras because their costume director was unable to duplicate the look of Caltech students (probably just couldn't believe it!). Most were like me - no money, and no concept of style.

PepsiCo seemed to have lost their collective minds in the 90's in their pursuit of fighting the Cola Wars, like it was some narco gang territory. This episode seems tame in comparison to the Pepsi Number Fever aka 349 incident, with a similarity to running an ad campaign, and then strong arming or swatting away claimants, as a cost of doing business.

Pepsi Number Fever, also known as the 349 incident,was a promotion held by PepsiCo in the Philippines in 1992, which led to riots and the deaths of at least five people

https://en.wikipedia.org/wiki/Pepsi_Number_Fever

https://www.phmurderstories.com/blog/pepsis-number-fever-199...

Reading the wiki article seems to indicate this is a different issue though. It was a system bug that led to approximately 64 billion 2021 dollars erroneously being printed out as prizes in a single day. This was never factored in as a cost of doing business.

This wasn't the same thing as putting a prize in an ad that was never meant to be redeemed since this was a bug to begin with. The problem is that an advertising campaign that quintuples your market share to a quarter of the soft drink market in a matter of months must have tapped into an extremely strong set of emotions and those will turn into an absolute fury if your campaign backfires so spectacularly.

The article says his suit was rejected because ads don't obligate the advertiser to anything. That seems more or less false. False advertising is explicitly against the law. I don't understand why a ruling would be made implying that false advertising is ok. At very least, it seems Pepsi should have been fined for that.

From memory, my understanding is that it did not obligate Pepsi because it was obviously* a joke.

*obvious to any reasonable person.

"Obvious to any reasonable person" is so vague. What happens when Poe's law is reached? Half the people will scream obvious while the other half scream obviously not! Also, the reasonable person would have to be raised and steeped in the culture. why would someone from another country, who doesn't understand US norms, be considered unreasonable? Pepsi is a large corporation that has been in posetion of USSR military gear (vague because I don't exactly remember what atm). Why wouldn't they be able to give a jet away? They are big enough, have possessed similar items, and run contests all the time. Seems legit to me (but I also haven't seen the ad).

Here's the ad in case you're interested: https://www.youtube.com/watch?v=ZdackF2H7Qc

Thanks! Definitely Poe's law. They show what seem like awards with point values and include a jet with a point value. The jet landing at school seems like a joke, but not the jet itself, IMHO. Sure it's an outlandish prize, but they gave it a point value along with others. Maybe the way the case was brought, it fell apart, but that's gotta be false advertizing.

I'd like to pose a serious question to you, which might run the risk of offending you--so fair warning, there.

I understand the fact that you believe your opinion is reasonable... It sounds like you also understand that the world broadly disagrees with you. A federal judge (Kimba Wood, no less!) disagreed with you... Since there was no appeal, I'd gather that the guy couldn't find funds to continue his suit--so his backers seem to have disagreed, too.

Is there a reason why you're more willing to believe in the idea that "All these people, including experienced legal minds, must be wrong", rather than "My own layman's intuition about the law must wrong"?

I'm asking because I genuinely don't understand why you'd want to continue backing your POV in the face of evidence to the contrary. I may have missed something, and I'm curious what your thought process looks like.

I know this just drags out the point--sorry for that--but your reasoning is based on a false statement. You reason that "Since there was no appeal...", but in point of fact, there was an appeal.

Consider this my pedantic contribution to a discussion about a pedantic case.

You got me there, yep... So that means a Federal appellate court also disagreed? Not sure what what stage of the appeal process he got to, so I dunno if that strengthens the argument or what.

There's a difference between what is legal and what is right. What is actually legal is muddled in stacks of overriding law and legal precedent that no "reasonable person" could every really know completely. I would bet you that more than 30% of the country wouldn't have seen that and thought "oh that's obviously a joke".

I am not an expert on U.S. law, so I can't answer in detail, but you better believe that formal standards to define that have been developed. I have heard of polling being done to determine what the average "reasonable person" thinks. Remember, this is not what any individual random person thinks, but what people in general are likely to think, so Poe's law doesn't really apply.

You don’t need to rely on your memory here. There’s an article with details at your fingertips!

Further down in the article, it gives 3 reasons why the court rejected it. One of which was reasonable characterization that anyone would make that it was a joke.

The reasons, for those interested but not going to read it, the final one seems a slam dunk too:

Advertisements are generally not considered offers in contract law: “Ads for the sale of goods (TV, radio, newspaper, newsletter)… are merely the requests to offer or negotiate” and an advertiser must accept an offer from a customer for it to be legally formed.

The ad was obviously a joke: An “ordinary, reasonable person” would conclude that a soft drink company would not give away a fighter plane as part of a promotion.

An enforceable contract requires both parties’ signatures: Under existing law, any contract for the sale of goods worth $500+ must be evidenced by writing; Pepsi did not sign anything.

Here's the thing: did Pepsi come through on the other things advertised in that commercial?

If they sent a leather jacket for 1450 points and a mountain bike for 3500, then it seems to me that it is against the public interest to allow a company to make such offers and then rescind them arbitrarily.

That's why we get small print saying things like "screens are simulated" and "not actual size" and "while supplies last" or "at participating stores only" -- because without those disclaimers, we should be able to rely on statements about prices, promotions and availability.

> That's why we get small print saying things like "screens are simulated" and "not actual size" and "while supplies last" or "at participating stores only" -- because without those disclaimers, we should be able to rely on statements about prices, promotions and availability.

If they'd advertise a can for 99ct and make a can look like 1l when it is in fact only 0.5l you could reasonably say that one could've expected 1l cans - these cans exist and this would not be out of the ordinary, even though a bit cheaper than usual. If the can in the advertisement would be the size of a truck, it would be hard to argue that you really thought you would get that for 99ct.

If they offer something that is a) very rare, b) insanely expensive and c) not allowed to be owned by a private person, I find it very hard to argue that one could reasonably think this is an actual offer.

I agree with you that we should not give companies endless leeway to deceive customers, but let's not discard common sense.

I don't think it's illegal to own a Harrier jet. I think the weapons systems just need to be removed first (there's probably also a lot of paperwork involved).

Here's an NPR article about a guy who has one: https://www.npr.org/2014/07/27/335839280/sold-harrier-jump-j...

he lost on appeal and moved to alaska working in public service. to me that is considered failure.

I think it would constitute fake advertising if they accepted his money but failed to uphold their end of the bargain by giving him a functional jet. It's not fake advertising if Ford advertises a truck for $25k but then fails to sell one to you because, for example, they ran out of chips and couldn't make enough trucks.

But it would be false advertising if Ford said you could buy a truck for $5k, but told you they actually cost $25k when you showed up to buy it

It's not entirely unusual for automobile models to be in high enough demand that they are sold at higher than the advertised price (MSRP).

Nah, not really. Automobile pricing is closer to traditional K offer/acceptance laws. Additionally no car dealer would advertise such a deal without including a clause stating the price is subject to (usually many) conditions and could change at any time.

False advertising is a rather narrow doctrine, one that by necessity has to interact with standard contract law. Cases where false advertising involves prices usually include issues like hidden fees (telecoms signing you up for X a month but then your bill includes Y fees that weren't disclosed to you). More commonly, false advertising concerns things like consumer deception - claims that something is "clinically proven" when it actually isn't, for instance.

In general, in contract law, if the changed price is communicated to you before you have accepted the offer, then there's no issue. There are literally hundreds of years of precedent going back to the English common law describing what does and does not constitute an offer and what does and doesn't constitute acceptance of an offer.

If they don't actually have any $5k trucks but claim they do in order to lure people in to try to sell them $25k trucks that would be a bait and switch that would run afoul of the law in several states. The FTC would probably also have something to say.

I tried to buy/lease a car recently and not a single one of the advertised prices was actually available. For example the commercials that say “lease a new 2021 Subaru for $250/month”. You get to the dealership and any of these following reasons could be why the car actually costs way more: that price is for a base model, they only have supreme models available at the dealer that price is only available to people with a 800 credit score you need to put 5,000 down and only drive the car 10,000 miles per year that promotion ended *the promotion is still going but that dealership doesn’t participate

Etc, etc etc.

The list goes on and on, but one thing is for sure- you will never get a car at the advertised price.

IANAL, but your experience sounds like bait and switch, which IS considered deceptive advertising.

> fake advertising if they accepted his money but failed to uphold their end of the bargain by giving him a functional jet.

no, the money was for the points, the points were for merch selected from the catalog. Not giving him the points was actually false advertising.

They didn't run out of harrier jets tho, they never intended to give them away in the first place.

> Leonard filed suit, claiming that Pepsi’s ad had constituted as a binding offer.

The article says the judge ruled it was not a binding offer for 3 reasons: 1. Advertisements are generally not considered offers in contract law. 2. The ad was obviously a joke. 3. An enforceable contract requires both parties’ signatures.

Fun fact ad 3 - in some countries (Poland) there is a concept in law of a public promise. If a corporation publicly promises something (a competition usually), they are obliged to act upon it, even if there were no signatures on the other side.

"Above advertisement does not constitute offer as meant by the article 66 of Civil Code" :)

Written everywhere in otomoto. Lol never understood what that pesky caveat was there for.

The legal form of "but I had my fingers crossed so it doesn't count"

In England and Wales (Scotland has its own legal system) there is very famous case law that says that an offer can be made to the world at large (through an advert in this case). https://en.m.wikipedia.org/wiki/Carlill_v_Carbolic_Smoke_Bal...

Which may seem to apply, but this was an offer to add a guarantee to the terms. Whereas merely advertising a price is just an invitation for the buyer to make you an offer. Here is an almost as famous case.

https://en.m.wikipedia.org/wiki/Pharmaceutical_Society_of_GB...

I am not surprised our fellow common law jurisdictions like the US reached the same conclusion.

The case law that makes up English civil law, especially the early stuff is really fascinating stuff to me. IANAL but understanding the contact law from these cases has won me several disputes in my professional life.

3. An enforceable contract requires both parties’ signatures.

This really doesn't jive with what I know about contract law, so I checked the article, and it is more specific:

An enforceable contract requires both parties’ signatures: Under existing law, any contract for the sale of goods worth $500+ must be evidenced by writing; Pepsi did not sign anything.

Still, was Pepsi really selling something for more than $500? It's an exchange for Pepsi points (not cash), and even though you can buy them, are they equivalent to cash? Also, on top of that, has anyone signed anything the last time they bought a $500+ laptop, PS5 bundle, unlocked cell phone, etc.?

I know a contract has to meet all elements of a contact to actually be a contract, so the other 2 reasons are enough, but this 3rd reason seems out of place, given the situation and even what I learned in my contact law class.

If the ad was a contractual offer to sell a Harrier jet, it would be generally governed by the UCC, not by basic contract law.

The individual in question sent in 15 Pepsi points and a check for $700k.

The Pepsi points were irrelevant here. If he had spent a ton of money to make equivalent Pepsi points then maybe there would be a case here.

Yes, that is what I'm saying doesn't make sense. If those reasons hold up, then all of bait-and-switch advertising is legal to do - which is obviously not the case. Unless the ruling is saying that bait-and-switch advertising is only ok when its "obviously a joke". I don't really think it was that obvious in the pepsi case tho.

> That seems more or less false. False advertising is explicitly against the law.

That’s not the point that was argued, though. An advertisement doesn’t oblige the advertise to engage in a specific transaction with a customer.

This isn’t uncommon. If you see a house advertised for sale at $500,000, the owners aren’t obligated to sell you the house for $500,000 or even to sell the house at any price. An advertisement alone isn’t a legally binding offer to complete a transaction.

False advertising also requires an intent to deceive or mislead, or at least evidence that the advertiser behaved recklessly in the advertisement. The advertisement is obviously a joke and they wouldn’t be able to find anyone to testify that that PepsiCo actually thought they would be selling a Harrier jet, so proving intent to mislead or reckless behavior would be nearly impossible when the entire premise was a joke.

Regardless, I’m inclined to believe the judge who presided over this case and did the work of reading through all of the legal precedent.

I mean, we can certainly believe the Judge applied the law correctly, but also disagree that the law should be this way.

> I mean, we can certainly believe the Judge applied the law correctly, but also disagree that the law should be this way.

I'm not sure what issue you see with the law here. It seems to both be written and applied quite well. The Pepsi ad isn't really misleading or reckless, and obviously just a bit of fun hyperbole.

You should read the opinion. Ruling otherwise would essentially eliminate obvious jokes from advertising, and the opinion makes a good case for just how obvious the joke was.

No reasonable person can disagree with the legal principle at issue. You are suggesting that if you place an ad on, e.g., Facebook marketplace, you should be legally obligated to engage in the transaction with the first person to accept your asking price. Your position is indisputably absurd.

To my mind the transaction was already halfway complete though so it's not like someone advertising a house for 500,000 and deciding not to sell when offered the 500,000. It's more like a car dealership saying if you buy 100 cars from use we will throw in a free house and then after you buy the cars they say nevermind..

And government contractors often expend considerable time and effort developing a bid pitch in response to a solicitation. That doesn't mean they are entitled to the contract. Your proposed contract law regime would break the entire world.

Performance can be a method of accepting an offer and can create a contract. However, it's still necessary for there to be an offer and not just a generic solicitation.

I don't think gameswithgo's post, as written, presents any position on this specific judgment. (I read it as a more general statement that one can agree with a legal ruling while disagreeing with the underlying law(s)/precedent.)

> This isn’t uncommon. If you see a house advertised for sale at $500,000, the owners aren’t obligated to sell you the house for $500,000 or even to sell the house at any price.

In France, they do. If someone shows up and offers the advertised price, the deal is sealed as well. Even for $5m that you don’t have.

If they offer a lower price with conditions and the owner says yes, it is also binding. It can be on a simple free paper, and going through a notary is optional, even if recommended. The only exception is that the purchaser has 10 days of legal withdrawal after signing the contract (only €300 notary costs). The seller can’t withdraw, unless conditions were manually specified. I wasn’t aware of that when I made an offer by email, fortunately the landlord explained me that I should list the exceptions/conditions in my own interest…

Huh, that seems almost guaranteed to end up with a bunch of properties that prices on are just entirely unavailable. But putting a disclaimer on it seems like it'd be good enough for both rule sets...

> If you see a house advertised for sale at $500,000, the owners aren’t obligated to sell you the house for $500,000 or even to sell the house at any price. An advertisement alone isn’t a legally binding offer to complete a transaction.

It's been a long time since I took my business law classes, so I could be wrong, but I think they part of the test for whether something is false advertising or not is whether a reasonable person would believe the offer is legitimate.

For example, if a dealer has a car worth $20k and they're advertising it for $15k, a reasonable person would probably believe that's a legitimate offer. If that same dealer is advertising that same car for $100, a reasonable person wouldn't believe that is a real offer.

> False advertising also requires an intent to deceive or mislead, or at least evidence that the advertiser behaved recklessly in the advertisement

I still don’t know why ISPs and mobile carriers weren’t punished for their “unlimited” data plans. Today, they rely on throttling. However in the past they resorted to worse tactics

My guess is corruption. Barring that tho, they probably usually had asterisks everywhere.

> If you see a house advertised for sale at $500,000, the owners aren’t obligated to sell you the house for $500,000

Why?

Basic contract law. Is an invitation to offer not an offer Long running precedent for advertising in general.

I don't think you're correct. Bait and Switch advertising is not legal and the FTC will go after those that do that kind of thing.

There are other reasons for deciding not to sell a house after advertising it other than pulling a bait-and-switch scam. Maybe the seller changed their mind about selling it, or realized the house is worth more than they advertised it for. The mere fact that someone placed an ad for their house doesn't legally obligate them to sell it. I'm not a lawyer so don't know what exactly would legally be considered a bait-and-switch, but I presume you'd have to show that the plan all along was to use the initial offer as bait in order to draw a buyer into some other deal.

While you're absolutely right, I don't see how its relevant in this case.

>you'd have to show that the plan all along was to use the initial offer as bait in order to draw a buyer into some other deal.

I mean, its pretty obvious that their plan is to use the excitement of the harrier jet to lure people into buying pepsi and pepsi points. The question really becomes: might a reasonable person believe that they're actually selling the jet. I would say its quite likely. I think this is bad precendent.

> Bait and Switch advertising is not legal and the FTC will go after those that do that kind of thing.

Yes, but electing not to sell a unique item at an advertised price when a concrete offer is received is not the same thing:

---quote---

How does the FTC define "bait and switch" advertising?

It's illegal to advertise a product when the company has no intention of selling that item, but instead plans to sell a consumer something else, usually at a higher price. For more information, ask the FTC for its Guides Against Bait Advertising.

---end quote---

https://www.ftc.gov/tips-advice/business-center/guidance/adv...

---quote---

Bait advertising is an alluring but insincere offer to sell a product or service which the advertiser in truth does not intend or want to sell. Its purpose is to switch consumers from buying the advertised merchandise, in order to sell something else, usually at a higher price or on a basis more advantageous to the advertiser. The primary aim of a bait advertisement is to obtain leads as to persons interested in buying merchandise of the type so advertised.

---end quote---

16 USC § 238.0, https://www.ecfr.gov/cgi-bin/text-idx?SID=69e59fd0c1f4966cfd...

> electing not to sell a unique item at an advertised price when a concrete offer is received is not the same thing

I disagree. I think it very much is the same thing. Unless they had other reasons (other than that they didn't want to honor their advertisement).

Both quotes you wrote down seem to quite clearly apply in this Pepsi case.

> I think it very much is the same thing.

It doesn't fit the regulatory definition for two key reasons:

(1) the regulatory definition of bait advertising turns on intent at the time of advertising, not decisions which happen later.

(2) the regulatory definition also turns on the intent being not to sell the thing adveritsed; even if the intent in advance is to sell it on different terms, that is not “bait advertising” (it may br prohibited by some other law or rule in some cases.)

> Both quotes you wrote down seem to quite clearly apply in this Pepsi case.

Even if you could construe the ad as an offer to sell anything, it wasn’t an offer to sell one thing to lure people in and sell them something else.

(And, of course, the Court already ruled in the case, in adjudicating a different claim to which the same question was relevant, that it couldn’t be reasonably viewed as an offer at all.)

1) Ok. And the intent at time of advertising was always not to see the jet. So I don't see your point. Still seems to apply at the time of advertising.

2) They did indeed not ever intend to sell the thing advertised. So again, what are you talking about?

I dunno man, I guess I just disagree.

> And the intent at time of advertising was always not to see the jet

And the court ruled that no one could reasonably view it as an offer to make the jet available as a reward.

Even if that wasn't the case, what is the substitute product?

> the court ruled that no one could reasonably view it as an offer to make the jet available as a reward And I told you I think they were wrong.

> Even if that wasn't the case, what is the substitute product?

All of the other garbage they sold for Pepsi points...

> the court ruled that no one could reasonably view it as an offer to make the jet available as a reward

And I told you I think they were wrong.

> Even if that wasn't the case, what is the substitute product?

All of the other garbage they sold for Pepsi points...

> it wasn’t an offer to sell one thing to lure people in and sell them something else.

Clearly they wanted to lure people in to sell them Pepsi cans...

> An advertisement doesn’t oblige the advertise to engage in a specific transaction with a customer.

While that's probably true, an advertisement does oblige the advertiser to actually be offering those things at the terms advertised to some non-misleading degree. Like, if an advertiser said "selling cars for $500" and they didn't actually have any $500 cars for sale, that's false advertising. If they had cars that were listed at $500, but they refused to sell them to anybody, that would also be false advertising.

> they wouldn’t be able to find anyone to testify that that PepsiCo actually thought they would be selling a Harrier jet

That's irrelevent. What is relevent is whether reasonble viewers outside the company might actually believe that. I think it would be perfectly reasonable for someone who didn't know much about harrier jets to think it might be a plane they could obtain and fly. It doesn't really seem like an "obvious" joke unless you know a lot about harrier jets - which most people don't.

I'm absolutely not picking on no one when I point out this comment is yet another example of the hazards of applying apparent common sense to matters of law. One doesn't get any extra consideration from a judge for pointing out what seems false.

Also, the article makes clear that plaintiff chose a legal strategy closer to contract breach than false advertising.

Perhaps that was a misake on the plaintiffs part. But the ruling does seem to contradict legal precedent around bait-and-switch advertising. So its still a bit perplexing.

It was rejected on multiple points, one of them being that nobody reasonably would think a soft drink company was going to give them a fighter jet.

I'm inclined to be more protective about false advertising and all... but not the the point of absurdity where we demand they provide someone a fighter jet... or $33m for $700,000 as compensation.

Whatever we might feel about advertising, that result would be absurd and solve nothing.

"Mr. Simpson, this is the most blatant case of fraudulent advertising since my suit against the movie, The Neverending Story!" - https://simpsons.fandom.com/wiki/Lionel_Hutz

> ads don't obligate the advertiser to anything

Great to know! Yet another reason not to feel even a little bit bad when I block them.

> The article says his suit was rejected because ads don't obligate the advertiser to anything.

This is simply wrong.

It was rejected because the particular ad did not (for a variety of reasons cited in the ruling) make an offer that was open to be accepted by the action by which he purported to accept the purported offer, so there was no contract [0], nor was it legally fraud, since Pepsi never cashed the check.

Ads, more generally, may or may not create offers open to acceptance by action.

> False advertising is explicitly against the law

False advertising is different than advertising creating a forward obligations; an advertisement is false or not when presented. OTOH, the puffery reasoning applied in the fraud claim in the Harrier case would also apply to a false advertising claim.

[0] while the thing its cited for is puffery, its worth noting that, even if puffery was off the table, the purported subject matter of the agreement would have required a written agreement signed by the parties under the Statute of Frauds to form a valid contract, and obviously no such written agreement existed.

> Pepsi never cashed the check.

So maybe if the guy had actually first obtained all the point, then demanded the jet, the suit might have come out differently?

> cited for is puffery

I'm no expert on puffery, but if the definition on wikipedia is correct, it doesn't seem like its puffery because it doesn't express "subjective views" https://en.wikipedia.org/wiki/Puffery . Offering a jet for points is a pretty objective statement.

> the purported subject matter of the agreement would have required a written agreement signed by the parties

Perhaps that's what would be needed for this to be fraud, but a contract certainly wouldn't be necessary to accuse them of bait-and-switch.

> Perhaps that's what would be needed for this to be fraud,

No, a valid contract was a requirement of the breach of contract claim, not the fraud claim.

> but a contract certainly wouldn't be necessary to accuse them of bait-and-switch.

Bait-and-switch isn't a legal cause of action. The usual cause of action for things described as bait and switch is either breach of contract (if there was an agreement) or fraud (if the bait-and-switcher got something of value from the other party out of it). Both were raised in this case, and both failed.

> Bait-and-switch isn't a legal cause of action

That seems pretty dumb to me. Then you're telling me it not actually illegal? There's no way to enforce advertisers not from doing a bait and switch? Count me skeptical.

> Then you're telling me it not actually illegal?

There is a regulatory category called “Bait advertising” created under FTC’s legal authority related to deceptive advertising, and various legal causes of action (mainly fraud and breach of contract, but there are others) that each cover some part of what might be described as “bait and switch” in casual conversation. “Bait and switch” is something that different people will have different boundaries around and has no hard and fast definition.

At one time Pepsi actually owned several USSR military vessels

https://www.businessinsider.com/how-pepsi-briefly-became-the...

You have to wonder what the executives thought of this!

Sounds like an interesting documentary ready to happen.

>You have to wonder what the executives thought of this!

Based on the time period, in the words of Rick James, "cocaine is a helluva drug." If that was the actual reason, it makes total sense. If that's not the reason, then what the actual f were they doing?

There wasn't a usable forex market for ruble to USD. At that point you drop down to essentially bartering.

There weren't many products in the Soviet Union that could be sold in the west. They needed a commodity that was to western standards. Soviet steel had full scrap value in the west and the ships were mobile. Pepsi also traded for tomato paste.

Bribing someone?

They were sold for scrap. They were less military vessels than large floating objects worth their weight in steel.

Interesting story.

Kinda hard to feel bad for the would be jet owner. He knew it was a joke but wanted to take advantage of the opportunity for arbitrage anyways.

The more astounding aspect is that he was able to get investors in on his scheme.

>he was able to get investors in on his scheme.

Small downside (legal fees, 1/7x), big upside (~50x return) plus they knew Pepsi would return the check. That liquid was available for other purposes. On the upside column, it probably felt good to fund the cheeky bastard.

The sad thing is that his lawyers didn't inform him about "Advertisements are generally not considered offers in contract law", but still took his money.

I wonder if it could ever be considered fraud to accept payment for a case you know to be unwinnable, seeing as how the client would have to be operating under the assumption that the case is winnable.

He'd need to get some new lawyers to sue the original lawyers! Lawyers all the way down...

> Lawyers all the way down

Sir, this is the stuff nightmares are made of

> I wonder if it could ever be considered fraud to accept payment for a case you know to be unwinnable, seeing as how the client would have to be operating under the assumption that the case is winnable.

If the lawyers gave him legal advice that was obviously bad or false, there could be a malpractice case.

Most likely they did tell him (though probably not very forcefully), and he proceeded anyway against the advice of counsel. Happens all the time.

he didn't even need the investors' money given that he knew the check would never be cashed.

But then he would have broken the law by passing a knowingly bad check.

Potentially, depending on the state... But in California and many other states, its not actually a crime to simply pass a check that you know will bounce. There's another essential element of the crime: Intent to defraud the recipient of the check.

So if he felt confident in demonstrating that he had financial backers who'd cover the $700k if Pepsi delivered the airplane, then he might be able to beat the check fraud charge. But yeah, it seems like a pretty dangerous gamble to me.

I don't mind someone trying to arbitrage exactly one big expensive thing.

They could have given him a Soviet warship instead: https://en.wikipedia.org/wiki/PepsiCo#Soviet_Union

Marketing agencies keep underestimating the number of crazy people out there that will not only crunch the numbers but attempt to execute.

Like that guy that bought a pallet full of dessert to get unlimited flight tickets

So many people here talking about "False Advertising"[0] thinking that is enough.

The pursuant likely has a case under a false advertising claim especially when considering:

  > For example, a lease advertisement for an automobile that promotes "$0 Down" may be misleading if significant and undisclosed charges are due at lease signing

The problem is "false advertising" doesn't get him the jet. It just says Pepsi should be slapped on the wrist, made to change their advertisement. Non-compliance is:

  > orders to cease and desist, with fines up to $43,792 per violation should they occur.

  > injunctions by federal district courts. Violations of some Commission rules also could result in civil penalties of up to $40,654 per violation. Violations of court orders could result in civil or criminal contempt proceedings.

  > in some instances, refunds to consumers for actual damages in civil lawsuits.

Leonard had to go after it being a contractual obligation if he wanted any chance at Pepsi giving him the jet or equivalent monetary value.

The judge was correct. It's not a contract. Is it false advertising? Probably, but that wasn't the question at hand.

[0] https://www.ftc.gov/tips-advice/business-center/guidance/adv...

I remember seeing this commercial as a little kid and fully believing this was a real thing that could happen and someone could fly to school in a jet. I thought it’d be so cool if I could win and do that someday.

I kind of miss being able to easily believe in something so outrageous like that. Nowadays I approach most things with extreme skepticism and a cynical opinion. The world has beaten me down.

Would buying some magic beans from me cheer you up?

Haha, reminds me of when Pepsi had the 6th largest military force in the world.

True story, see below.

https://nickyoder.com/5-minute-history-pepsi/

‘the Harrier was a US Marine Corps aircraft used extensively in the Gulf War. Capable of taking off vertically and carrying 10k pounds of bombs, it had been called the “most captivating and the most dangerous plane in the US military.”’

From a British Design by Hawker Siddeley in the 1960s.

https://en.wikipedia.org/wiki/Harrier_Jump_Jet

This quote betrays a lack of understanding of the destructive power of other planes in the US arsenal. Depending on when it was uttered, the B52, B2, A10, AC130 and/or F22 all come to mind as being way scarier.

In this case it's likely "dangerous" refers to the plane's danger to the pilot, not the targets of its weapons. The Harrier was notoriously unstable in its VTOL configuration, as it was built before adoption of fly by wire systems that could keep it stable automatically, like the F-35B does.

Doesn't the B2 have world-wide nuclear weapons deployment capabilities? Nothing is scarier than this impossibly cool plane.

Yes, it can deliver a nuclear warhead anywhere in the world without detection. Basically a death-ray.

> most dangerous plane in the US military.

Only for the pilot.

I support Pepsi in this. It's hilarious reading all of the comments from Americans, who will sue at the drop of a hat. Can't even make a joke in an ad without getting sued, so much for being a free country, ahaha.

I remembered that ad campaign and (more vaguely) the lawsuit the moment I saw the headline here. Before I clicked the link I said to myself, "Harrier jet, right?" This made me happy since I sometimes indulge in fear regarding cognitive decline.

You post this same comment every time this story resurfaces on the front page. :|

Are you suggesting he is indeed on the decline? :(

I can't seem to find any other instance of this comment.

I suspect the comment you are replying to executed what is called a joke.

Lol it always amaze me how people can be that persistent in trying to get what they want. He wants to get a jet for 7m points!

I respect his persistence, I would never do that.. regardless, good read

Pretty much a classic in every 1L law school class.

This and the "Carbolic Smoke Ball" case. (An advertisement purporting to offer £100 to anyone who catches influenza after using their product does not create a unilateral offer that can be accepted by catching influenza).

The Wikipedia article I found says that the court found it does create such an offer? (Or rather, an offer that can be accepted by buying and using a ball.)

You’re right, I misremembered the ruling. As with most cases you read in law school, the issues are more important than the outcome.

At a company I was at, we ran a sweepstakes. The person who won was a person who just entered online sweepstakes for a living.

It's interesting and a sign of the failures of the justice system that "the same judges" (not necessarily literally) rule >An enforceable contract requires both parties’ signatures: Under existing law, any contract for the sale of goods worth $500+ must be evidenced by writing; Pepsi did not sign anything.

While at the same time deem click through EULAs valid contracts.

>at the same time deem click through EULAs valid contracts

Is this actually the case?

I'm not sure that it is...

Regardless the points made in the Pepsi case are quite different than an EULA. That was only part of the reasons for the decision in the Pepsi case.

Some have, some haven't... Various US federal circuits are currently in dispute, so there are some interpretations where it's all legit, and others where it's not, or is limited... Also, various states have drastically different statutory laws that govern software sales & EULA enforceability.

... Point is, the parent poster is correct... A significant portion of legislatures & jurists believe EULAs to be valid contracts. Not all, but plenty enough.

I think the other user has since edited their post so we would be talking past each other.

When I responded there was nothing about what " A significant portion of legislatures & jurists believe".

One of the big weaknesses of the current US legal system is that the cost of access leaves a huge opening to ask for the moon.

Aside from the general question "is a clickwrap EULA or ToS enforcable" there are a million tiny questions about specific clauses and terms in the 30-page contracts that are stapled to everything in sight these days.

Many of them will never be litigated through, because the damages may be small or difficult to quantify, and either self-financing a case or finding a lawyer who's willing to take it on contingency or build a class-action may be difficult.

I also wonder how often the mere threat of legal action is used as a bludgeon, even if a fully played-out and fair trial would show the threat to be based on unenforcable terms. (i. e. using non-disclosure clauses to try to hide malfeasance) Easier just to back down than to spend the next five years and six figures trying to defend yourself in court.

We have a strangely quaint 18th-century model of "contracts made between parties of roughly equal negotiating power and legal knowledge". I'm not sure it makes sense to apply to companies that have spent dozens of man-years with retained lawyers to refine their contracts, then dump them in front of consumers whose legal training consists of the Saturday afternoon Law & Order marathon on channel 51.

Yes, there are some escape hatches built into the system, but every time I see "our terms of service have changed" I know I'm getting reamed somewhere or somehow.

IIRC it was once ruled that eulas aren’t legally binding contracts, to to their unnatural length and unreasonable expectation that everyone reads it.

He wouldn’t be able to afford the fuel (hovering burns a ton) let alone the training, I’m assuming it’s illegal to fly. I wonder how hard it would be to sell a harrier? I believe I heard of one retired military pilot buying one.

> But as a Defense Department spokesman clarified, a fully demilitarized jet probably wouldn’t have been much fun, anyway.

> “Even if the lad were able to get the plane from Pepsi, it would not be one he could fly,” the official said at a Pentagon briefing.

Ex-military planes exist and can be flown. The fuel problem is easily solved by setting up a business around it and selling rides. This was done with several other jets.

Recently the FAA has been making this hard, by not allowing passengers on planes that don't have a full certificate of airworthyness.

>Recently the FAA has been making this hard, by not allowing passengers on planes that don't have a full certificate of airworthyness.

After several crashes resulting in deaths.

> I believe I heard of one retired military pilot buying one.

That would probably be this guy:

https://brobible.com/culture/article/badass-pilot-series-art...

I would wonder more about maintenance and safety piloting for what is an unusual fighter.

I’m sorry. Why on earth would any reasonable person think you could turn in 7 million points for a jet?

It was a clever piece of advertising ruined because some self important snot could not see the humor.

Its funny and an interesting read. At the same time, this kind of frivolous litigation drives me nuts.

What kind of psychopath puts so much effort into getting money by abusing the legal system?

Something about the article is off. If purchasing a point costs 10 cents and the jet requires 7 million points, his cheque would need to be for $70,000,000, not $700,000.

fyi think you mixed up dollars with cents

Reminded me of this classic recording [0] of Verizon Customer Service failing to understand the difference between cents and dollars.

[0] https://www.youtube.com/watch?v=MShv_74FNWU

Oops, I did indeed, 70m cents.

The harrier costs $30 million, and the JSF costs "$80 million" (plus $1.1 trillion development / jobs program / pork / bug fixing)

Why didn't we just turn harriers into drones and build a lot of them?

It seems like we should be building a lot of cheap and/or pilotless aircraft.

edit: -4. I should refrain from posting unpopular opinions because it triggers HN's rate limiter and prevents me from posting the rest of the day. I just wrote a small essay I can't post anymore.

The US government certainly has fleets of pilotless drones, both small and large.

> Why didn't we just turn harriers into drones and build a lot of them?

An aircraft whose basic design concept is more than 50 years old isn't the best starting point for a modern drone capability

B-52s are a design that will turn 70 next year, with individual airframes built 60 years ago still in active service, and planned to continue in same beyond 2050, a century of use.

Aeronautics hasn't changed all that much. Many of the interesting parts can be readily swapped out. (A re-engining of the B-52 was considered in the 1970s, but shelved on a costs-benefit basis.)

A drone Harrier role might not make strategic sense, though it could. Age alone has little to do with the question.

> B-52s are a design that will turn 70 next year

Agree.

> A drone Harrier role might not make strategic sense

B-52s are still flying because they do actually fulfil a military role, namely carrying vast amounts of stuff and being suitably militarised. Harriers are relatively short range, non-stealthy, fuel inefficient and sacrifice payload for the VTOL capability. I can't see any way in which a Harrier would make sense as the basis for a new drone, let alone in a strategic sense.

[Edit] Updating old military things to new roles can be a fantastic way to waste vast amounts of money before cancelling the programme anyway. Exhibit A - the UK's Nimrod programme (new engines on bespoke vintage fuselages). Exhibit B. The UK Army's Warrior vehicle upgrade (modern turrets on a 40-year old hull), cancelled this year after running the 'capability sustainment programme' for at least five years.

[Edit 2] The last time (1982) that the Harriers conducted actual air combat as opposed to dropping bombs in a permissive airspace was against Super Étendard (now 50 years old) and Mirage III (now 60 years old). There is no evidence Harriers would last more than ten minutes if their users didn't have total air supremacy.

The B-52 is an inherently conservative design: tube-and-wing, jets on pods, designed for maximum payload. It's not fast (subsonic), it's not stealthy. It has immense range, and works where the goal is power projection. It's also got a large support infrastructure (including tooling for necessary maintenance and repairs), and major systems (avionics and comms) can be upgraded over time. It's the airframe, propulsion, and fuel that are the architectural bones of the aircraft.

The Harrier is more specialised, and attempted to create a specific niche. That niche has since evolved.

It's still possible that it (or other comparably-aged aircraft) could be retrofit for pilotless operation. Given the age and capabilities, they might not be able to directly take on current advanced fighters or defence systems, but could still operate where a manned vehicle could not, and with performance parameters a human pilot wouldn't survive. (This isn't just G-forces but temperature, altitude, endurance, and standbye / stationing capabilities.) The ability to take off and land vertically could still be of use, and the notion of such craft which might be parked or staged ready for combat without requiring pilots ... does seem to afford some interesting capabilities.

(Of course, this could be achived with specifically-designed drone craft as well.)

Another interesting question is in-air refueling. Seems that that's an area of current research, both in enabling refueling of drones in-flight, and of drones serving as aerial tankers.

Old aircraft do get turned into drones, for training and R&D purposes though, not for combat.

I'm no miltary person, but would modifying an old plane to fly without a pilot either as a autonominous plane or remote piloted drone allow it to be come more dangerous than the oringinal fitted out plane?

ie because there's no human inside so it should be able fly tighter turns, also be a lighter aircraft

Depends on the plane, but it seems that most aircraft can sustain about the same force as the people flying them. I'm sure there are safety margins but an F-16 can sustain about 9 G's [0]. A trained fighter pilot with an anti-G suite can sustain around 9 G's as well [1]. The G-force capabilities don't seem to have improved much since the F-16. The F-35 can also "only" do 9 G's [2].

This does make sense though. Whats the point of building an aircraft that can withstand much higher G's if there is no pilot that can ever fly it in such a manner. Plus it might just become exponentially more expense to exceed this limit.

[0] https://www.af.mil/About-Us/Fact-Sheets/Display/Article/1045... [1] https://www.pbs.org/wgbh/nova/article/gravity-forces/ [2] https://www.airforce.gov.au/technology/f-35a-specifications

I understand the Eurofighter can withstand forces well above 9g. Maybe most jets aren't built to sustain forces they will never encounter anyway.

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