The opinion of the court was delivered by: EUGENE H. NICKERSON
Plaintiff, a Philippine resident and citizen, brings this diversity suit on behalf of himself and a consumer group he heads in the Philippines against PepsiCo Inc., incorrectly sued as "PepsiCo International" ("PepsiCo"), alleging breach of contract in connection with a promotional "instant-cash" game conducted by PepsiCo in the Philippines.
PepsiCo moves to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(1), (2) and (6), for lack of subject matter jurisdiction, standing, and personal jurisdiction. In the alternative, PepsiCo asks the court to decline jurisdiction over a foreign class.
The complaint alleges, in substance, the following.
The Number Fever Game offered consumers the chance to win instant cash prizes. Plaintiff says that, according to the publicized rules, the inside of each Pepsi bottle cap was marked with a three-digit number and a potential prize amount, ranging from one thousand Pesos (P1,000) to one million Pesos (P1,000,000) During the period that the game ran, the exchange rate was thirty Pesos to one U.S. dollar. Each day of the game, PepsiCo would announce a new winning number. A person who had a bottle cap with the same three-digit number as the one announced would win whatever prize amount was marked on that cap.
On May 22, 1992 PepsiCo announced that the winning number was 349. Because of an error, far more consumers than intended or anticipated by PepsiCo held bottle caps containing the number 349 and listing various cash prizes.
PepsiCo refused to honor the bottle caps printed with "349," despite consumers' attempts to claim their prizes. PepsiCo says predetermined security codes were also printed under each bottle cap, and that PepsiCo used that code to establish the true winners. Plaintiff says the rules did not mention the matching security code as a precondition to winning.
Plaintiff says the Number Fever Game was a contract between PepsiCo and all participating consumers, and PepsiCo breached that contract by refusing to redeem the "winning" bottle caps.
Plaintiff Vicente Del Fierro Jr., who holds at least one bottle cap, sues on behalf of himself and a consumer group called "Coalition 349." Plaintiff is president of Coalition 349 and says the group is comprised of "several thousand of winners of Pepsi's 'Number Fever Game.'" He seeks $ 400,000,000 in actual damages, $ 1,000,000 in "moral and exemplary" damages, and attorneys fees and costs.
The affidavit of Alexander Poblador, Philippine counsel for PepsiCo, states the following additional facts relevant to this motion.
PepsiCo Inc.-Philippine Branch ("PepsiCo-Philippines") is PepsiCo's office in the Philippines. Pepsi-Cola Far East Trade Development Co., Inc. ("PepsiCo Far East"), PepsiCo's concentrate supplier, and Pepsi-Cola Products Philippines, Inc. ("PepsiCo Products"), PepsiCo's Philippine bottler, are Philippine corporations. Poblador Aff. in Supp. of Mot. to Dismiss, P 4.
Both PepsiCo-Philippines and PepsiCo Products developed the Number Fever Game, with the assistance of a New York advertising agency. Before implementing the promotion they received approval from the Department of Trade and Industry, a Philippine government agency regulating sales promotions, and from the Advertising Board of the Philippines. Poblador Aff. PP 5-7.
A consulting firm in Mexico developed the plan for selecting and placing non-winning and winning numbers under the bottle caps, and PepsiCo says that it was an error by that firm that caused so many caps to be mistakenly ...