The opinion of the court was delivered by: Kimba M. Wood, District Judge.
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 Inc.'s Rule 56.1 Statement ("Def.
Stat.") ¶ 2.)*fn1 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. ¶¶ 5-6.) 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.
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 sun-dappled
trees welcomes a paperboy on his morning route. As the newspaper
hits the stoop of a conventional two-story house, the tattoo of a
military drum introduces the subtitle, "MONDAY 7:58 AM." The
stirring strains of a martial air mark the appearance of a
well-coiffed teenager preparing to leave for school, dressed in a
shirt emblazoned with the Pepsi logo, a red-white-and-blue ball.
While the teenager confidently preens, the military drumroll
again sounds as the subtitle "T-SHIRT 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 Defendant's Local Rule 56.1 Stat., Exh. A (the
The teenager opens the cockpit of the fighter and can be seen,
helmetless, holding a Pepsi. "[L]ooking 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 7,000,000 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, fifty-three 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. All-terrain.
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. ¶¶ 23-26, 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 7,000,000 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 D.R. 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 $700,000. (See id. ¶ 6.)
B. Plaintiff's 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 $700,008.50.
(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 plaintiff's first set of attorneys.
(See Defendant's Notice of Motion, Exh. B (first).) At the
bottom of the Order Form, plaintiff wrote in "1 Harrier Jet" in
the "Item" column and "7,000,000" in the "Total Points" column.
(See id.) In a letter accompanying his submission,
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.)
On or about May 7, 1996, defendant's fulfillment house rejected
plaintiff's 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).) Plaintiff's 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 7,000,000 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 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
(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
action").*fn3 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 PepsiCo's
suit in New York, Leonard brought suit in Florida state court on
August 6, 1996, although this case had nothing to do with
Florida.*fn4 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 U.S.C. § 1404(a)." Leonard v. PepsiCo,
96-2555 Civ.-King, at 1 (S.D.Fla. Nov. 6, 1996). The Florida suit
was transferred to this Court on December 2, 1996, and assigned
the docket number 96 Civ. 9069.
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 Leonard's 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 $88,162 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 Leonard's strategy was "`clearly an
end-run around the final judgment rule.'" (Order at 2 (quoting
Palmieri v. Defaria, 88 F.3d 136 (2d Cir. 1996)).) 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
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.