Leonard v. Pepsico Inc: Análise do Caso 88 F Supp 2d 116 (1999)

02052023 0740 Leonard v Pepsico Inc 88 F Supp 2d 116 Dist Court SD New York 1999 Google Acadêmico httpsscholargooglecomscholarcasecase14010883517992816574 112 88 FSupp2d 116 1999 John DR LEONARD Plaintiff v PEPSICO INC Defendant Nos 96 Civ 5320KMW 96 Civ 9069KMW August 5 1999 United States District Court SD New York 117 OPINION ORDER 117 KIMBA M WOOD District Judge Plaintiff brought this action seeking among other things specific performance 118 of an alleged offer of a Harrier Jet featured in a television advertisement for defendants Pepsi Stuff promotion Defendant has moved for summary judgment pursuant to Federal Rule of Civil Procedure 56 For the reasons stated below defendants motion is granted 118 I Background 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 Incs Rule 561 Statement Def Stat 21 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 56 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 suburban morning where the chirping of birds in sundappled trees welcomes a paperboy on his morning route As the newspaper hits the stoop of a conventional twostory house the tattoo of a military drum introduces the subtitle MONDAY 758 AM The stirring strains of a martial air mark the appearance of a wellcoiffed teenager preparing to leave for school dressed in a shirt emblazoned with the Pepsi logo a redwhiteandblue ball While the teenager confidently preens the military drumroll again sounds as the subtitle TSHIRT 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 Defendants Local Rule 561 Stat Exh A the Catalog2 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 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 youre gonna get 119 02052023 0740 Leonard v Pepsico Inc 88 F Supp 2d 116 Dist Court SD New York 1999 Google Acadêmico httpsscholargooglecomscholarcasecase14010883517992816574 212 The teenager opens the cockpit of the fighter and can be seen helmetless holding a Pepsi Looking 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 7000000 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 fiftythree 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 Allterrain 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 See Pl Stat 2326 29 The rear foldout pages of the Catalog contain directions for redeeming Pepsi Points for merchandise See Catalog at rear foldout pages These directions note that merchandise may be ordered only with the original Order Form See id 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 See id Although plaintiff initially set out to collect 7000000 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 Affidavit of John DR Leonard Mar 30 1999 Leonard Aff 5 Reevaluating his strategy plaintiff focused for the first time on the packaging materials in the Pepsi Stuff promotion id and realized that buying Pepsi Points would be a more promising option See id Through acquaintances plaintiff ultimately raised about 700000 See id 6 B Plaintiffs 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 70000850 See Def Stat 36 Plaintiff appears to have been represented by counsel at the time he mailed his check the check is drawn on an account of plaintiffs first set of attorneys See Defendants Notice of Motion Exh B first At the bottom of the Order Form plaintiff wrote in 1 Harrier Jet in the Item column and 7000000 in the Total Points column See id In a letter accompanying his submission 120 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 See Declaration of David Wynn Mar 18 1999 Wynn Dec Exh A 120 On or about May 7 1996 defendants fulfillment house rejected plaintiffs submission and returned the check explaining that The item that you have requested is not part of the Pepsi Stuff collection It is not included in the catalogue or on the order form and only catalogue merchandise can be redeemed under this program The Harrier jet in the Pepsi commercial is fanciful and is simply included to create a humorous and entertaining ad We apologize for any misunderstanding or confusion that you may have experienced and are enclosing some free product coupons for your use Wynn Aff Exh B second Plaintiffs previous counsel responded on or about May 14 1996 as follows Your letter of May 7 1996 is totally unacceptable We have reviewed the video tape of the Pepsi Stuff commercial and it clearly offers the new Harrier jet for 7000000 Pepsi Points Our client followed your rules explicitly This is a formal demand that you honor your commitment and make immediate arrangements to transfer the new Harrier jet to our client If we do not receive transfer instructions within ten 10 business days of 02052023 0740 Leonard v Pepsico Inc 88 F Supp 2d 116 Dist Court SD New York 1999 Google Acadêmico httpsscholargooglecomscholarcasecase14010883517992816574 312 the date of this letter you will leave us no choice but to file an appropriate action against Pepsi Wynn Aff Exh C This letter was apparently sent onward to the advertising company responsible for the actual commercial BBDO New York BBDO In a letter dated May 30 1996 BBDO Vice President Raymond E McGovern Jr explained to plaintiff that I find it hard to believe that you are of the opinion that the Pepsi Stuff commercial Commercial really offers a new Harrier Jet The use of the Jet was clearly a joke that was meant to make the Commercial more humorous and entertaining In my opinion no reasonable person would agree with your analysis of the Commercial Wynn Aff Exh A On or about June 17 1996 plaintiff mailed a similar demand letter to defendant See Wynn Aff Exh D Litigation of this case initially involved two lawsuits the first a declaratory judgment action brought by PepsiCo in this district the declaratory judgment action and the second an action brought by Leonard in Florida state court the Florida action3 PepsiCo brought suit in this Court on July 18 1996 seeking a declaratory judgment stating that it had no obligation to furnish plaintiff with a Harrier Jet That case was filed under docket number 96 Civ 5320 In response to PepsiCos suit in New York Leonard brought suit in Florida state court on August 6 1996 although this case had nothing to do with Florida4 That suit was removed to the Southern District of Florida in September 1996 In an Order dated November 6 1996 United States District Judge James Lawrence King found that Obviously this case has been filed in a form that has no meaningful relationship to the controversy and warrants a transfer pursuant to 28 USC 1404a Leonard v PepsiCo 121 962555 CivKing at 1 SDFla Nov 6 1996 The Florida suit was transferred to this Court on December 2 1996 and assigned the docket number 96 Civ 9069 121 Once the Florida action had been transferred Leonard moved to dismiss the declaratory judgment action for lack of personal jurisdiction In an Order dated November 24 1997 the Court granted the motion to dismiss for lack of personal jurisdiction in case 96 Civ 5320 from which PepsiCo appealed Leonard also moved to voluntarily dismiss the Florida action While the Court indicated that the motion was proper it noted that PepsiCo was entitled to some compensation for the costs of litigating this case in Florida a forum that had no meaningful relationship to the case See Transcript of Proceedings Before Hon Kimba M Wood Dec 9 1997 at 3 In an Order dated December 15 1997 the Court granted Leonards motion to voluntarily dismiss this case without prejudice but did so on condition that Leonard pay certain attorneys fees In an Order dated October 1 1998 the Court ordered Leonard to pay 88162 in attorneys fees within thirty days Leonard failed to do so yet sought nonetheless to appeal from his voluntary dismissal and the imposition of fees In an Order dated January 5 1999 the Court noted that Leonards strategy was clearly an endrun around the final judgment rule Order at 2 quoting Palmieri v Defaria 88 F3d 136 2d Cir1996 Accordingly the Court ordered Leonard either to pay the amount due or withdraw his voluntary dismissal as well as his appeals therefrom and continue litigation before this Court See Order at 3 Rather than pay the attorneys fees Leonard elected to proceed with litigation and shortly thereafter retained present counsel On February 22 1999 the Second Circuit endorsed the parties stipulations to the dismissal of any appeals taken thus far in this case Those stipulations noted that Leonard had consented to the jurisdiction of this Court and that PepsiCo agreed not to seek enforcement of the attorneys fees award With these issues having been waived PepsiCo moved for summary judgment pursuant to Federal Rule of Civil Procedure 56 The present motion thus follows three years of jurisdictional and procedural wrangling II Discussion A The Legal Framework 1 Standard for Summary Judgment On a motion for summary judgment a court cannot try issues of fact it can only determine whether there are issues to be tried Donahue v Windsor Locks Bd of Fire Commrs 834 F2d 54 58 2d Cir 1987 citations and internal quotation marks omitted To prevail on a motion for summary judgment the moving party therefore must show that there are no such genuine issues of material fact to be tried and that he or she is entitled to judgment as a matter of 02052023 0740 Leonard v Pepsico Inc 88 F Supp 2d 116 Dist Court SD New York 1999 Google Acadêmico httpsscholargooglecomscholarcasecase14010883517992816574 412 law See Fed RCivP 56c Celotex Corp v Catrett 477 US 317 322 106 SCt 2548 91 LEd2d 265 1986 Citizens Bank v Hunt 927 F2d 707 710 2d Cir1991 The party seeking summary judgment bears the initial responsibility of informing the district court of the basis for its motion which includes identifying the materials in the record that it believes demonstrate the absence of a genuine issue of material fact Celotex Corp 477 US at 323 106 SCt 2548 Once a motion for summary judgment is made and supported the nonmoving party must set forth specific facts that show that there is a genuine issue to be tried See Anderson v Liberty Lobby Inc 477 US 242 25152 106 SCt 2505 91 LEd2d 202 1986 Although a court considering a motion for summary judgment must view all evidence in the light most favorable to the nonmoving party and must draw all reasonable inferences in that partys favor see Consarc Corp v Marine Midland Bank NA 996 F2d 568 572 2d Cir 1993 the nonmoving party must do more 122 than simply show that there is some metaphysical doubt as to the material facts Matsushita Elec Indus Co v Zenith Radio Corp 475 US 574 586 106 SCt 1348 89 LEd2d 538 1986 If based on the submissions to the court no rational factfinder could find in the nonmovants favor there is no genuine issue of material fact and summary judgment is appropriate See Anderson 477 US at 250 106 SCt 2505 122 The question of whether or not a contract was formed is appropriate for resolution on summary judgment As the Second Circuit has recently noted Summary judgment is proper when the words and actions that allegedly formed a contract are so clear themselves that reasonable people could not differ over their meaning Krumme v Westpoint Stevens Inc 143 F3d 71 83 2d Cir1998 quoting Bourque v FDIC 42 F3d 704 708 1st Cir1994 further citations omitted see also Wards Co v Stamford Ridgeway Assocs 761 F2d 117 120 2d Cir1985 summary judgment is appropriate in contract case where interpretation urged by nonmoving party is not fairly reasonable Summary judgment is appropriate in such cases because there is sometimes no genuine issue as to whether the parties conduct implied a contractual understanding In such cases the judge must decide the issue himself just as he decides any factual issue in respect to which reasonable people cannot differ Bourque 42 F3d at 708 quoting Boston Five Cents Sav Bank v Secretary of Dept of Housing Urban Dev 768 F2d 5 8 1st Cir1985 2 Choice of Law The parties disagree concerning whether the Court should apply the law of the state of New York or of some other state in evaluating whether defendants promotional campaign constituted an offer Because this action was transferred from Florida the choice of law rules of Florida the transferor state apply See Ferens v John Deere Co 494 US 516 523 33 110 SCt 1274 108 LEd2d 443 1990 Under Florida law the choice of law in a contract case is determined by the place where the last act necessary to complete the contract is done Jemco Inc v United Parcel Serv Inc 400 So2d 499 50001 FlaDist CtApp1981 see also Shapiro v Associated Intl Ins Co 899 F2d 1116 1119 11th Cir1990 The parties disagree as to whether the contract could have been completed by plaintiffs filling out the Order Form to request a Harrier Jet or by defendants acceptance of the Order Form If the commercial constituted an offer then the last act necessary to complete the contract would be plaintiffs acceptance in the state of Washington If the commercial constituted a solicitation to receive offers then the last act necessary to complete the contract would be defendants acceptance of plaintiffs Order Form in the state of New York The choice of law question cannot therefore be resolved until after the Court determines whether the commercial was an offer or not The Court agrees with both parties that resolution of this issue requires consideration of principles of contract law that are not limited to the law of any one state Most of the cases cited by the parties are not from New York courts As plaintiff suggests the questions presented by this case implicate questions of contract law deeply ingrained in the common law of England and the States of the Union Pl Mem at 8 B Defendants Advertisement Was Not An Offer 1 Advertisements as Offers The general rule is that an advertisement does not constitute an offer The Restatement Second of Contracts explains that Advertisements of goods by display sign handbill newspaper radio or television are not ordinarily intended or understood as offers to sell The same is true of catalogues price lists and circulars even though the terms of suggested bargains may be stated in some detail 123 It is of course possible to 123 02052023 0740 Leonard v Pepsico Inc 88 F Supp 2d 116 Dist Court SD New York 1999 Google Acadêmico httpsscholargooglecomscholarcasecase14010883517992816574 512 make an offer by an advertisement directed to the general public see 29 but there must ordinarily be some language of commitment or some invitation to take action without further communication Restatement Second of Contracts 26 cmt b 1979 Similarly a leading treatise notes that It is quite possible to make a definite and operative offer to buy or sell goods by advertisement in a newspaper by a handbill a catalog or circular or on a placard in a store window It is not customary to do this however and the presumption is the other way Such advertisements are understood to be mere requests to consider and examine and negotiate and no one can reasonably regard them as otherwise unless the circumstances are exceptional and the words used are very plain and clear 1 Arthur Linton Corbin Joseph M Perillo Corbin on Contracts 24 at 11617 rev ed1993 emphasis added see also 1 E Allan Farnsworth Farnsworth on Contracts 310 at 239 2d ed1998 1 Samuel Williston Richard A Lord A Treatise on the Law of Contracts 47 at 28687 4th ed1990 New York courts adhere to this general principle See Lovett v Frederick Loeser Co 124 Misc 81 207 NYS 753 755 NYMunCt1924 noting that an advertisement is nothing but an invitation to enter into negotiations and is not an offer which may be turned into a contract by a person who signifies his intention to purchase some of the articles mentioned in the advertisement see also Geismar v Abraham Strauss 109 Misc2d 495 439 NYS2d 1005 1006 NYDistCt1981 reiterating Lovett rule People v Gimbel Bros 202 Misc 229 115 NYS2d 857 858 NYSpSess 1952 because an advertisement does not constitute an offer of sale but is solely an invitation to customers to make an offer to purchase defendant not guilty of selling property on Sunday An advertisement is not transformed into an enforceable offer merely by a potential offerees expression of willingness to accept the offer through among other means completion of an order form In Mesaros v United States 845 F2d 1576 FedCir1988 for example the plaintiffs sued the United States Mint for failure to deliver a number of Statue of Liberty commemorative coins that they had ordered When demand for the coins proved unexpectedly robust a number of individuals who had sent in their orders in a timely fashion were left emptyhanded See id at 157880 The court began by noting the wellestablished rule that advertisements and order forms are mere notices and solicitations for offers which create no power of acceptance in the recipient Id at 1580 see also Foremost Pro Color Inc v Eastman Kodak Co 703 F2d 534 53839 9th Cir1983 The weight of authority is that purchase orders such as those at issue here are not enforceable contracts until they are accepted by the seller5 Restatement Second of Contracts 26 A manifestation of willingness to enter a bargain is not an offer if the person to whom it is addressed knows or has reason to know that the person making it does not intend to conclude a bargain until he has made a further manifestation of assent The spurned coin collectors could not maintain a breach of contract action because no contract would be formed until the advertiser accepted the order form and processed payment See id at 1581 see also Alligood v Procter Gamble 72 Ohio App3d 309 594 NE2d 668 1991 finding that no offer was made in promotional campaign for baby diapers in which consumers were to redeem teddy bear proofofpurchase symbols for catalog merchandise Chang v First Colonial Savings Bank 242 Va 388 124 410 SE2d 928 1991 newspaper advertisement for bank settled the terms of the offer once bank accepted plaintiffs deposit notwithstanding banks subsequent effort to amend the terms of the offer Under these principles plaintiffs letter of March 27 1996 with the Order Form and the appropriate number of Pepsi Points constituted the offer There would be no enforceable contract until defendant accepted the Order Form and cashed the check 124 The exception to the rule that advertisements do not create any power of acceptance in potential offerees is where the advertisement is clear definite and explicit and leaves nothing open for negotiation in that circumstance it constitutes an offer acceptance of which will complete the contract Lefkowitz v Great Minneapolis Surplus Store 251 Minn 188 86 NW2d 689 691 1957 In Lefkowitz defendant had published a newspaper announcement stating Saturday 9 AM Sharp 3 Brand New Fur Coats Worth to 10000 First Come First Served 1 Each Id at 690 Mr Morris Lefkowitz arrived at the store dollar in hand but was informed that under defendants house rules the offer was open to ladies but not gentlemen See id The court ruled that because plaintiff had fulfilled all of the terms of the advertisement and the advertisement was specific and left nothing open for negotiation a contract had been formed See id see also Johnson v Capital City Ford Co 85 So2d 75 79 LaCt App1955 finding that newspaper advertisement was sufficiently certain and definite to constitute an offer The present case is distinguishable from Lefkowitz First the commercial cannot be regarded in itself as sufficiently definite because it specifically reserved the details of the offer to a separate writing the Catalog6 The commercial itself made no mention of the steps a potential offeree would be required to take to accept the alleged offer of a Harrier Jet The advertisement in Lefkowitz in contrast identified the person who could accept Corbin supra 24 at 119 See generally United States v Braunstein 75 FSupp 137 139 SDNY1947 Greater precision of expression may 02052023 0740 Leonard v Pepsico Inc 88 F Supp 2d 116 Dist Court SD New York 1999 Google Acadêmico httpsscholargooglecomscholarcasecase14010883517992816574 612 be required and less help from the court given when the parties are merely at the threshold of a contract Farnsworth supra at 239 The fact that a proposal is very detailed suggests that it is an offer while omission of many terms suggests that it is not7 Second even if the Catalog had included a Harrier Jet among the items that could be obtained by redemption of Pepsi Points the advertisement of a Harrier Jet by both television commercial and catalog would still not constitute an offer As the Mesaros court explained the absence of any words of limitation such as first come first served renders the alleged offer sufficiently indefinite that no contract could be formed See Mesaros 845 F2d at 1581 A customer would not usually have reason to believe that the shopkeeper intended exposure to the risk of a multitude of acceptances resulting in a number of contracts exceeding the shopkeepers inventory Farnsworth supra at 242 There was no such danger in Lefkowitz owing to the limitation first come first served The Court finds in sum that the Harrier Jet commercial was merely an advertisement The Court now turns to the line of cases upon which plaintiff rests much of his argument 125 2 Rewards as Offers 125 In opposing the present motion plaintiff largely relies on a different species of unilateral offer involving public offers of a reward for performance of a specified act Because these cases generally involve public declarations regarding the efficacy or trustworthiness of specific products one court has aptly characterized these authorities as prove me wrong cases See Rosenthal v Al Packer Ford 36 MdApp 349 374 A2d 377 380 1977 The most venerable of these precedents is the case of Carlill v Carbolic Smoke Ball Co 1 QB 256 Court of Appeal 1892 a quote from which heads plaintiffs memorandum of law If a person chooses to make extravagant promises he probably does so because it pays him to make them and if he has made them the extravagance of the promises is no reason in law why he should not be bound by them Carbolic Smoke Ball 1 QB at 268 Bowen LJ Long a staple of law school curricula Carbolic Smoke Ball owes its fame not merely to the comic and slightly mysterious object involved AW Brian Simpson Quackery and Contract Law Carlill v Carbolic Smoke Ball Company 1893 in Leading Cases in the Common Law 259 281 1995 but also to its role in developing the law of unilateral offers The case arose during the London influenza epidemic of the 1890s Among other advertisements of the time for Clarkes World Famous Blood Mixture Towles Pennyroyal and Steel Pills for Females Sequahs Prairie Flower and Epps Glycerine JubeJubes see Simpson supra at 267 appeared solicitations for the Carbolic Smoke Ball The specific advertisement that Mrs Carlill saw and relied upon read as follows 100 reward will be paid by the Carbolic Smoke Ball Company to any person who contracts the increasing epidemic influenza colds or any diseases caused by taking cold after having used the ball three times daily for two weeks according to the printed directions supplied with each ball 1000 is deposited with the Alliance Bank Regent Street shewing our sincerity in the matter During the last epidemic of influenza many thousand carbolic smoke balls were sold as preventives against this disease and in no ascertained case was the disease contracted by those using the carbolic smoke ball Carbolic Smoke Ball 1 QB at 25657 On the faith of this advertisement id at 257 Mrs Carlill purchased the smoke ball and used it as directed but contracted influenza nevertheless8 The lower court held that she was entitled to recover the promised reward Affirming the lower courts decision Lord Justice Lindley began by noting that the advertisement was an express promise to pay 100 in the event that a consumer of the Carbolic Smoke Ball was stricken with influenza See id at 261 The advertisement was construed as offering a reward because it sought to induce performance unlike an invitation to negotiate which seeks a reciprocal promise As Lord Justice Lindley explained advertisements offering rewards are offers to anybody who performs the conditions named in the advertisement and anybody who does perform the condition accepts the offer Id at 262 see also id at 268 Bowen LJ9 Because Mrs Carlill had complied with the terms of the offer yet 126 contracted influenza she was entitled to 100 126 Like Carbolic Smoke Ball the decisions relied upon by plaintiff involve offers of reward In Barnes v Treece 15 Wash App 437 549 P2d 1152 1976 for example the vicepresident of a punchboard distributor in the course of hearings before the Washington State Gambling Commission asserted that Ill put a hundred thousand dollars to anyone to find a crooked board If they find it Ill pay it Id at 1154 Plaintiff a former bartender heard of the offer and located two crooked punchboards Defendant after reiterating that the offer was serious providing plaintiff with a receipt for the punchboard on company stationery and assuring plaintiff that the reward was being held in escrow nevertheless 02052023 0740 Leonard v Pepsico Inc 88 F Supp 2d 116 Dist Court SD New York 1999 Google Acadêmico httpsscholargooglecomscholarcasecase14010883517992816574 712 repudiated the offer See id at 1154 The court ruled that the offer was valid and that plaintiff was entitled to his reward See id at 1155 The plaintiff in this case also cites cases involving prizes for skill or luck in the game of golf See Las Vegas Hacienda v Gibson 77 Nev 25 359 P2d 85 1961 awarding 5000 to plaintiff who successfully shot a hole inone see also Grove v Charbonneau BuickPontiac Inc 240 NW2d 853 ND 1976 awarding automobile to plaintiff who successfully shot a holeinone Other reward cases underscore the distinction between typical advertisements in which the alleged offer is merely an invitation to negotiate for purchase of commercial goods and promises of reward in which the alleged offer is intended to induce a potential offeree to perform a specific action often for noncommercial reasons In Newman v Schiff 778 F2d 460 8th Cir1985 for example the Fifth Circuit held that a tax protestors assertion that If anybody calls this show and cites any section of the code that says an individual is required to file a tax return Ill pay them 100000 would have been an enforceable offer had the plaintiff called the television show to claim the reward while the tax protestor was appearing See id at 46667 The court noted that like Carbolic Smoke Ball the case concerns a special type of offer an offer for a reward Id at 465 James v Turilli 473 SW2d 757 MoCtApp1971 arose from a boast by defendant that the notorious Missouri desperado Jesse James had not been killed in 1882 as portrayed in song and legend but had lived under the alias J Frank Dalton at the Jesse James Museum operated by none other than defendant Defendant offered 10000 to anyone who could prove me wrong See id at 75859 The widow of the outlaws son demonstrated at trial that the outlaw had in fact been killed in 1882 On appeal the court held that defendant should be liable to pay the amount offered See id at 762 see also Mears v Nationwide Mutual Ins Co 91 F3d 1118 112223 8th Cir1996 plaintiff entitled to cost of two Mercedes as reward for coining slogan for insurance company In the present case the Harrier Jet commercial did not direct that anyone who appeared at Pepsi headquarters with 7000000 Pepsi Points on the Fourth of July would receive a Harrier Jet Instead the commercial urged consumers to accumulate Pepsi Points and to refer to the Catalog to determine how they could redeem their Pepsi Points The commercial sought a reciprocal promise expressed through acceptance of and compliance with the terms of the Order Form As noted previously the Catalog contains no mention of the Harrier Jet Plaintiff states that he noted that the Harrier Jet was not among the items described in the catalog but this did not affect his understanding of the offer Pl Mem at 4 It should have10 127 Carbolic Smoke Ball itself draws a distinction between the offer of reward in that case and typical advertisements which are merely offers to negotiate As Lord Justice Bowen explains 127 It is an offer to become liable to any one who before it is retracted performs the condition It is not like cases in which you offer to negotiate or you issue advertisements that you have got a stock of books to sell or houses to let in which case there is no offer to be bound by any contract Such advertisements are offers to negotiate offers to receive offers offers to chaffer as I think some learned judge in one of the cases has said Carbolic Smoke Ball 1 QB at 268 see also Lovett 207 NYS at 756 distinguishing advertisements as invitation to offer from offers of reward made in advertisements such as Carbolic Smoke Ball Because the alleged offer in this case was at most an advertisement to receive offers rather than an offer of reward plaintiff cannot show that there was an offer made in the circumstances of this case C An Objective Reasonable Person Would Not Have Considered the Commercial an Offer Plaintiffs understanding of the commercial as an offer must also be rejected because the Court finds that no objective person could reasonably have concluded that the commercial actually offered consumers a Harrier Jet 1 Objective Reasonable Person Standard In evaluating the commercial the Court must not consider defendants subjective intent in making the commercial or plaintiffs subjective view of what the commercial offered but what an objective reasonable person would have understood the commercial to convey See KayR Elec Corp v Stone Webster Constr Co 23 F3d 55 57 2d Cir1994 We are not concerned with what was going through the heads of the parties at the time of the alleged contract Rather we are talking about the objective principles of contract law Mesaros 845 F2d at 1581 A basic rule of contracts holds that whether an offer has been made depends on the objective reasonableness of the alleged 02052023 0740 Leonard v Pepsico Inc 88 F Supp 2d 116 Dist Court SD New York 1999 Google Acadêmico httpsscholargooglecomscholarcasecase14010883517992816574 812 offerees belief that the advertisement or solicitation was intended as an offer Farnsworth supra 310 at 237 Williston supra 47 at 29697 If it is clear that an offer was not serious then no offer has been made What kind of act creates a power of acceptance and is therefore an offer It must be an expression of will or intention It must be an act that leads the offeree reasonably to conclude that a power to create a contract is conferred This applies to the content of the power as well as to the fact of its existence It is on this ground that we must exclude invitations to deal or acts of mere preliminary negotiation and acts evidently done in jest or without intent to create legal relations Corbin on Contracts 111 at 30 emphasis added An obvious joke of course would not give rise to a contract See eg Graves v Northern NY Pub Co 260 AD 900 22 NYS2d 537 1940 dismissing claim to offer of 1000 which appeared in the joke column of the newspaper to any person who could provide a commonly available phone number On the other hand if there is no indication that the offer is evidently in jest and that an objective reasonable person would find that the offer was serious then there may be a valid offer See Barnes 549 P2d at 1155 If the jest is not apparent and a reasonable hearer would believe that an offer was being made then the speaker risks the formation of a contract which was not intended see also Lucy v Zehmer 196 Va 493 84 SE2d 516 518 520 1954 128 ordering specific performance of a contract to purchase a farm despite defendants protestation that the transaction was done in jest as just a bunch of two doggoned drunks bluffing 128 2 Necessity of a Jury Determination Plaintiff also contends that summary judgment is improper because the question of whether the commercial conveyed a sincere offer can be answered only by a jury Relying on dictum from Gallagher v Delaney 139 F3d 338 2d Cir 1998 plaintiff argues that a federal judge comes from a narrow segment of the enormously broad American socioeconomic spectrum id at 342 and thus that the question whether the commercial constituted a serious offer must be decided by a jury composed of inter alia members of the Pepsi Generation who are as plaintiff puts it young open to adventure willing to do the unconventional See Leonard Aff 2 Plaintiff essentially argues that a federal judge would view his claim differently than fellow members of the Pepsi Generation Plaintiffs argument that his claim must be put to a jury is without merit Gallagher involved a claim of sexual harassment in which the defendant allegedly invited plaintiff to sit on his lap gave her inappropriate Valentines Day gifts told her that she brought out feelings that he had not had since he was sixteen and invited her to help him feed the ducks in the pond since he was a bachelor for the evening Gallagher 139 F3d at 344 The court concluded that a jury determination was particularly appropriate because a federal judge lacked the current reallife experience required in interpreting subtle sexual dynamics of the workplace based on nuances subtle perceptions and implicit communications Id at 342 This case in contrast presents a question of whether there was an offer to enter into a contract requiring the Court to determine how a reasonable objective person would have understood defendants commercial Such an inquiry is commonly performed by courts on a motion for summary judgment See Krumme 143 F3d at 83 Bourque 42 F3d at 708 Wards Co 761 F2d at 120 3 Whether the Commercial Was Evidently Done In Jest Plaintiffs insistence that the commercial appears to be a serious offer requires the Court to explain why the commercial is funny Explaining why a joke is funny is a daunting task as the essayist EB White has remarked Humor can be dissected as a frog can but the thing dies in the process11 The commercial is the embodiment of what defendant appropriately characterizes as zany humor Def Mem at 18 First the commercial suggests as commercials often do that use of the advertised product will transform what for most youth can be a fairly routine and ordinary experience The military tattoo and stirring martial music as well as the use of subtitles in a Courier font that scroll terse messages across the screen such as MONDAY 758 AM evoke military and espionage thrillers The implication of the commercial is that Pepsi Stuff merchandise will inject drama and moment into hitherto unexceptional lives The commercial in this case thus makes the exaggerated claims similar to those of many television advertisements that by consuming the featured clothing car beer or potato chips one will become attractive stylish desirable and admired by all A reasonable viewer would understand such advertisements as mere puffery not as statements of fact see eg Hubbard v General Motors Corp 95 Civ 4362AGS 1996 WL 274018 at 6 SDNY 02052023 0740 Leonard v Pepsico Inc 88 F Supp 2d 116 Dist Court SD New York 1999 Google Acadêmico httpsscholargooglecomscholarcasecase14010883517992816574 912 May 22 1996 advertisement describing automobile as Like a Rock was mere puffery not a warranty of quality Lovett 207 NYS at 756 and refrain from interpreting the promises of the commercial as being literally true Second the callow youth featured in the commercial is a highly improbable pilot one who could barely be trusted with the 129 keys to his parents car much less the prize aircraft of the United States Marine Corps Rather than checking the fuel gauges on his aircraft the teenager spends his precious preflight minutes preening The youths concern for his coiffure appears to extend to his flying without a helmet Finally the teenagers comment that flying a Harrier Jet to school sure beats the bus evinces an improbably insouciant attitude toward the relative difficulty and danger of piloting a fighter plane in a residential area as opposed to taking public transportation12 129 Third the notion of traveling to school in a Harrier Jet is an exaggerated adolescent fantasy In this commercial the fantasy is underscored by how the teenagers schoolmates gape in admiration ignoring their physics lesson The force of the wind generated by the Harrier Jet blows off one teachers clothes literally defrocking an authority figure As if to emphasize the fantastic quality of having a Harrier Jet arrive at school the Jet lands next to a plebeian bike rack This fantasy is of course extremely unrealistic No school would provide landing space for a students fighter jet or condone the disruption the jets use would cause Fourth the primary mission of a Harrier Jet according to the United States Marine Corps is to attack and destroy surface targets under day and night visual conditions United States Marine Corps Factfile AV8B Harrier II last modified Dec 5 1995 Manufactured by McDonnell Douglas the Harrier Jet played a significant role in the air offensive of Operation Desert Storm in 1991 See id The jet is designed to carry a considerable armament load including Sidewinder and Maverick missiles See id As one news report has noted Fully loaded the Harrier can float like a butterfly and sting like a bee albeit a roaring 14ton butterfly and a bee with 9200 pounds of bombs and missiles Jerry Allegood Marines Rely on Harrier Jet Despite Critics News Observer Raleigh Nov 4 1990 at C1 In light of the Harrier Jets welldocumented function in attacking and destroying surface and air targets armed reconnaissance and air interdiction and offensive and defensive antiaircraft warfare depiction of such a jet as a way to get to school in the morning is clearly not serious even if as plaintiff contends the jet is capable of being acquired in a form that eliminates its potential for military use See Leonard Aff 20 Fifth the number of Pepsi Points the commercial mentions as required to purchase the jet is 7000000 To amass that number of points one would have to drink 7000000 Pepsis or roughly 190 Pepsis a day for the next hundred years an unlikely possibility or one would have to purchase approximately 700000 worth of Pepsi Points The cost of a Harrier Jet is roughly 23 million dollars a fact of which plaintiff was aware when he set out to gather the amount he believed necessary to accept the alleged offer See Affidavit of Michael E McCabe 96 Civ 5320 Aug 14 1997 Exh 6 Leonard Business Plan Even if an objective reasonable person were not aware of this fact he would conclude that purchasing a fighter plane for 700000 is a deal too good to be true13 130 Plaintiff argues that a reasonable objective person would have understood the commercial to make a serious offer of a Harrier Jet because there was absolutely no distinction in the manner Pl Mem at 13 in which the items in the commercial were presented Plaintiff also relies upon a press release highlighting the promotional campaign issued by defendant in which no mention is made by defendant of humor or anything of the sort Id at 5 These arguments suggest merely that the humor of the promotional campaign was tongue in cheek Humor is not limited to what Justice Cardozo called the rough and boisterous joke that evokes its own guffaws Murphy v Steeplechase Amusement Co 250 NY 479 483 166 NE 173 174 1929 In light of the obvious absurdity of the commercial the Court rejects plaintiffs argument that the commercial was not clearly in jest 130 4 Plaintiffs Demands for Additional Discovery In his Memorandum of Law and in letters to the Court plaintiff argues that additional discovery is necessary on the issues of whether and how defendant reacted to plaintiffs acceptance of their offer how defendant and its employees understood the commercial would be viewed based on testmarketing the commercial or on their own opinions and how other individuals actually responded to the commercial when it was aired See Pl Mem at 12 Letter of David E Nachman to the Hon Kimba M Wood Apr 5 1999 Plaintiff argues that additional discovery is necessary as to how defendant reacted to his acceptance suggesting that it is significant that defendant twice changed the commercial the first time to increase the number of Pepsi Points required to purchase a Harrier Jet to 700000000 and then again to amend the commercial to state the 700000000 amount and add Just Kidding See Pl Stat Exh C 700 Million and Exh D 700 Million Just Kidding Plaintiff concludes that Obviously if PepsiCo truly believed that no one could take seriously the offer contained in the original 02052023 0740 Leonard v Pepsico Inc 88 F Supp 2d 116 Dist Court SD New York 1999 Google Acadêmico httpsscholargooglecomscholarcasecase14010883517992816574 1012 ad that I saw this change would have been totally unnecessary and superfluous Leonard Aff 14 The record does not suggest that the change in the amount of points is probative of the seriousness of the offer The increase in the number of points needed to acquire a Harrier Jet may have been prompted less by the fear that reasonable people would demand Harrier Jets and more by the concern that unreasonable people would threaten frivolous litigation Further discovery is unnecessary on the question of when and how the commercials changed because the question before the Court is whether the commercial that plaintiff saw and relied upon was an offer not that any other commercial constituted an offer Plaintiffs demands for discovery relating to how defendant itself understood the offer are also unavailing Such discovery would serve only to cast light on defendants subjective intent in making the alleged offer which is irrelevant to the question of whether an objective reasonable person would have understood the commercial to be an offer See KayR Elec Corp 23 F3d at 57 We are not concerned with what was going through the heads of the parties at the time of the alleged contract Mesaros 845 F2d at 1581 Corbin on Contracts 111 at 30 Indeed plaintiff repeatedly argues that defendants subjective intent is irrelevant See Pl Mem at 5 8 13 Finally plaintiffs assertion that he should be afforded an opportunity to determine whether other individuals also tried to accumulate enough Pepsi Points to purchase a Harrier Jet is unavailing The possibility that there were other people who interpreted the commercial as an offer of a Harrier Jet does not render that belief any more or less reasonable The alleged offer must be evaluated on its own terms Having made the evaluation 131 the Court concludes that summary judgment is appropriate on the ground that no reasonable objective person would have understood the commercial to be an offer14 131 D The Alleged Contract Does Not Satisfy the Statute of Frauds The absence of any writing setting forth the alleged contract in this case provides an entirely separate reason for granting summary judgment Under the New York15 Statute of Frauds a contract for the sale of goods for the price of 500 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his authorized agent or broker NYUCC 22011 see also eg AFP Imaging Corp v Philips Medizin Systeme 92 Civ 6211LMM 1994 WL 652510 at 4 SDNY Nov 17 1994 Without such a writing plaintiffs claim must fail as a matter of law See Hilord Chem Corp v Ricoh Elecs Inc 875 F2d 32 3637 2d Cir1989 The adequacy of a writing for Statute of Frauds purposes must be determined from the documents themselves as a matter of law quoting Bazak Intl Corp v Mast Indus Inc 73 NY2d 113 118 538 NYS2d 503 535 NE2d 633 1989 There is simply no writing between the parties that evidences any transaction Plaintiff argues that the commercial plaintiffs completed Order Form and perhaps other agreements signed by defendant which plaintiff has not yet seen should suffice for Statute of Frauds purposes either singly or taken together See Pl Mem at 1819 For the latter claim plaintiff relies on Crabtree v Elizabeth Arden Sales Corp 305 NY 48 110 NE2d 551 1953 Crabtree held that a combination of signed and unsigned writings would satisfy the Statute of Frauds provided that they clearly refer to the same subject matter or transaction Id at 55 110 NE2d 551 Yet the Second Circuit emphasized in Horn Hardart Co v Pillsbury Co 888 F2d 8 2d Cir1989 that this rule contains two strict threshold requirements Id at 11 First the signed writing relied upon must by itself establish a contractual relationship between the parties Id quoting Crabtree 305 NY at 56 110 NE2d 551 see also OKeeffe v Bry 456 FSupp 822 829 SDNY1978 To the extent that Crabtree permits the use of a confluence of memoranda the minimum condition for such use is the existence of one signed document establishing the basic underlying contractual commitment The second threshold requirement is that the unsigned writing must on its face refer to the same transaction as that set forth in the one that was signed Horn Hardart 888 F2d at 11 quoting Crabtree 305 NY at 56 110 NE2d 551 see also Bruce Realty Co of Florida v Berger 327 FSupp 507 510 SDNY1971 None of the material relied upon by plaintiff meets either threshold requirement The commercial is not a writing plaintiffs completed order form does not bear the signature of defendant or an agent thereof and to the extent that plaintiff seeks discovery of any contracts between defendant and its advertisers such discovery would be unavailing plaintiff 132 is not a party to or a beneficiary of any such contracts Because the alleged contract does not meet the requirements of the Statute of Frauds plaintiff has no claim for breach of contract or specific performance 132 02052023 0740 Leonard v Pepsico Inc 88 F Supp 2d 116 Dist Court SD New York 1999 Google Acadêmico httpsscholargooglecomscholarcasecase14010883517992816574 1112 E Plaintiffs Fraud Claim In addition to moving for summary judgment on plaintiffs claim for breach of contract defendant has also moved for summary judgment on plaintiffs fraud claim The elements of a cause of action for fraud are representation of a material existing fact falsity scienter deception and injury New York Univ v Continental Ins Co 87 NY2d 308 639 NYS2d 283 662 NE2d 763 1995 quoting Channel Master Corp v Aluminium Ltd Sales Inc 4 NY2d 403 407 176 NYS2d 259 262 151 NE2d 833 1958 To properly state a claim for fraud plaintiff must allege a misrepresentation or material omission by defendant on which it relied that induced plaintiff to perform an act See NYU 639 NYS2d at 289 662 NE2d 763 General allegations that defendant entered into a contract while lacking the intent to perform it are insufficient to support the claim See id citing Rocanova v Equitable Life Assur Socy 83 NY2d 603 612 NYS2d 339 634 NE2d 940 1994 see also Grappo v Alitalia Linee Aeree Italiane SpA 56 F3d 427 434 2d Cir1995 A cause of action does not generally lie where the plaintiff alleges only that the defendant entered into a contract with no intention of performing it Instead the plaintiff must show the misrepresentation was collateral or served as an inducement to a separate agreement between the parties See BridgestoneFirestone v Recovery Credit 98 F3d 13 20 2d Cir1996 allowing a fraud claim where plaintiff demonstrates a fraudulent misrepresentation collateral or extraneous to the contract quoting Deerfield Communications Corp v ChesebroughPonds Inc 68 NY2d 954 510 NYS2d 88 89 502 NE2d 1003 1986 For example in Stewart v Jackson Nash 976 F2d 86 2d Cir1992 the Second Circuit ruled that plaintiff had properly stated a claim for fraud In the course of plaintiffs negotiations for employment with defendant a law firm defendant represented to plaintiff not only that plaintiff would be hired which she was but also that the firm had secured a large environmental law client that it was in the process of establishing an environmental law department and that plaintiff would head the environmental law department See id at 8990 The Second Circuit concluded that these misrepresentations gave rise to a fraud claim because they consisted of misrepresentations of present fact rather than future promises Plaintiff in this case does not allege that he was induced to enter into a contract by some collateral misrepresentation but rather that defendant never had any intention of making good on its offer of a Harrier Jet See Pl Mem at 23 Because this claim alleges only that the defendant entered into a contract with no intention of performing it Grappo 56 F3d at 434 judgment on this claim should enter for defendant III Conclusion In sum there are three reasons why plaintiffs demand cannot prevail as a matter of law First the commercial was merely an advertisement not a unilateral offer Second the tongueincheek attitude of the commercial would not cause a reasonable person to conclude that a soft drink company would be giving away fighter planes as part of a promotion Third there is no writing between the parties sufficient to satisfy the Statute of Frauds For the reasons stated above the Court grants defendants motion for summary judgment The Clerk of Court is instructed to close these cases Any pending motions are moot 1 The Courts recitation of the facts of this case is drawn from the statements of uncontested facts submitted by the parties pursuant to Local Civil Rule 561 The majority of citations are to defendants statement of facts because plaintiff does not contest many of defendants factual assertions See Plaintiff Leonards Response to PepsiCos Rule 561 Statement PlStat Plaintiffs disagreement with certain of defendants statements is noted in the text In an Order dated November 24 1997 in a related case 96 Civ 5320 the Court set forth an initial account of the facts of this case Because the parties have had additional discovery since that Order and have crafted Local Civil Rule 561 Statements and Counter statements the recitation of facts herein should be considered definitive 2 At this point the following message appears at the bottom of the screen Offer not available in all areas See details on specially marked packages 3 Because Leonard and PepsiCo were each plaintiff in one action and defendant in the other the Court will refer to the parties as Leonard and PepsiCo rather than plaintiff and defendant for its discussion of the procedural history of this litigation 4 The Florida suit alleged that the commercial had been shown in Florida Not only was this assertion irrelevant in that plaintiff had not actually seen the commercial in Florida but it later proved to be false See Leonard v PepsiCo 962555 CivKing at 1 SDFla Nov 6 1996 The only connection this case has to this forum is that Plaintiffs lawyer is in the Southern District of Florida 02052023 0740 Leonard v Pepsico Inc 88 F Supp 2d 116 Dist Court SD New York 1999 Google Acadêmico httpsscholargooglecomscholarcasecase14010883517992816574 1212 5 Foremost Pro was overruled on other grounds by Hasbrouck v Texaco Inc 842 F2d 1034 1041 9th Cir1987 affd 496 US 543 110 SCt 2535 110 LEd2d 492 1990 See Chroma Lighting v GTE Products Corp 111 F3d 653 657 9th Cir1997 cert denied sub nom Osram Sylvania Products Inc v Von Der Ahe 522 US 943 118 SCt 357 139 LEd2d 278 1997 6 It also communicated additional words of reservation Offer not available in all areas See details on specially marked packages 7 The reservation of the details of the offer in this case distinguishes it from Payne v Lautz Bros Co 166 NYS 844 NYCity Ct1916 In Payne a stamp and coupon broker purchased massive quantities of coupons produced by defendant a soap company and tried to redeem them for 4000 roundtrip tickets to a local beach The court ruled for plaintiff noting that the advertisements were absolutely unrestricted It contained no reference whatever to any of its previous advertising of any form Id at 848 In the present case by contrast the commercial explicitly reserved the details of the offer to the Catalog 8 Although the Court of Appealss opinion is silent as to exactly what a carbolic smoke ball was the historical record reveals it to have been a compressible hollow ball about the size of an apple or orange with a small opening covered by some porous material such as silk or gauze The ball was partially filled with carbolic acid in powder form When the ball was squeezed the powder would be forced through the opening as a small cloud of smoke See Simpson supra at 26263 At the time carbolic acid was considered fatal if consumed in more than small amounts See id at 264 9 Carbolic Smoke Ball includes a classic formulation of this principle If I advertise to the world that my dog is lost and that anybody who brings the dog to a particular place will be paid some money are all the police or other persons whose business it is to find lost dogs to be expected to sit down and write a note saying that they have accepted my proposal Carbolic Smoke Ball 1 QB at 270 Bowen LJ 10 In his affidavit plaintiff places great emphasis on a press release written by defendant which characterizes the Harrier Jet as the ultimate Pepsi Stuff award See Leonard Aff 13 Plaintiff simply ignores the remainder of the release which makes no mention of the Harrier Jet even as it sets forth in detail the number of points needed to redeem other merchandise 11 Quoted in Gerald R Ford Humor and the Presidency 23 1987 12 In this respect the teenager of the advertisement contrasts with the distinguished figures who testified to the effectiveness of the Carbolic Smoke Ball including the Duchess of Sutherland the Earls of Wharncliffe Westmoreland Cadogan and Leitrim the Countesses Dudley Pembroke and Aberdeen the Marchionesses of Bath and Conyngham Sir Henry Acland the physician to the Prince of Wales and Sir James Paget sergeant surgeon to Queen Victoria See Simpson supra at 265 13 In contrast the advertisers of the Carbolic Smoke Ball emphasized their earnestness stating in the advertisement that 1000 is deposited with the Alliance Bank shewing our sincerity in the matter Carbolic Smoke Ball 1 QB at 257 Similarly in Barnes the defendants subsequent statements conduct and the circumstances show an intent to lead any hearer to believe the statements were made seriously Barnes 549 P2d at 1155 The offer in Barnes moreover was made in the serious forum of hearings before a state commission not as defendant states at a gambling convention Compare Barnes 549 P2d at 1154 with Def Reply Mem at 6 14 Even if plaintiff were allowed discovery on all of these issues such discovery would be relevant only to the second basis for the Courts opinion that no reasonable person would have understood the commercial to be an offer That discovery would not change the basic principle that an advertisement is not an offer as set forth in Section IIB of this Order and Opinion supra nor would it affect the conclusion that the alleged offer failed to comply with the Statute of Frauds as set forth in Section IID infra 15 Having determined that defendants advertisement was not an offer the last act necessary to complete the contract would be defendants acceptance in New York of plaintiffs Order Form Thus the Court must apply New York law on the statute of frauds issue See supra Section IIA2 Preserve as árvores leia os pareceres legais online no Google Acadêmico