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Freeman v. Time, Inc.

United States Court of Appeals for the Ninth Circuit

July 13, 1995, 1 Submitted, Pasadena, California ; August 21, 1995, Filed

Nos. 94-55089, 94-55091

Opinion

 [*287]  OPINION

TASHIMA, District Judge:

These are two consolidated appeals from the district court's dismissal of two separate actions alleging that sweepstakes promotional materials were fraudulent and misleading.

FACTS

Plaintiff-appellant Michael Freeman ("Freeman") received two separate mailers for the "Million Dollar Dream Sweepstakes," a promotion of defendant-appellee Time, Inc. ("Time"). 3 The mailers, personalized [**2]  by computer, are similar in content and format - both contain statements in large type representing that Freeman won the sweepstakes, qualified by language in smaller type indicating that Freeman would win only if he returned a winning prize number. For example, the Sports Illustrated promotion states "If you return the grand prize winning number, we'll officially announce that MICHAEL FREEMAN HAS WON $ 1,666,675.00 AND PAYMENT IS SCHEDULED TO BEGIN." It continues, "If you return the grand prize winning entry, we'll say $ 1,666,675.00 WINNER MICHAEL FREEMAN OF ENCINO, CALIFORNIA IS OUR LARGEST MAJOR PRIZE WINNER!" The promotion provides, "We are now scheduled to begin payment of the third and largest prize - the $ 1,666,675 listed next to the name MICHAEL FREEMAN! In fact, arrangements have already been made which make it possible to begin payment of the $ 1,666,675 DIRECTLY to MICHAEL FREEMAN if one of your numbers is the grand prize winner." It concludes that "if you return your entry with the Validation Seal attached and your entry includes the grand prize winning number, MICHAEL FREEMAN IS GUARANTEED TO BE PAID THE ENTIRE $ 1,666,675.00!"

 [**3]  The mailer includes an "Official Entry Certificate" on which recipient could check a box marked "YES! [Send free gifts and magazine subscription] Also, enter me in the sweepstake and notify me if I'm a winner" or a box marked "NO! [Don't send gifts and subscription] But enter me in the sweepstakes." Separate return envelopes are enclosed for "yes" and "no" entries - printed outside both envelopes is the statement "enter me in the sweepstakes and notify me if I am a millionaire."

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68 F.3d 285 *; 1995 U.S. App. LEXIS 24527 **; 95 Cal. Daily Op. Service 7882

MICHAEL FREEMAN, Plaintiff-Appellant, v. THE TIME, INC., MAGAZINE COMPANY, et al., Defendants-Appellees.

Subsequent History:  [**1]  The Publication Status of this Document has been Changed by the Court from Unpublished to Published October 6, 1995.

Prior History: Appeals from the United States District Court for the Central District of California. D.C. Nos. CV 93-3267 TJH. CV 93-3039 TJH. Terry J. Hatter, Jr., District Judge, Presiding.

CORE TERMS

unfair, advertising, Consumer, winning, sweepstakes, misleading, prize, winner, deception, deceived

Civil Procedure, Appeals, Appellate Jurisdiction, Final Judgment Rule, Responses, Defenses, Demurrers & Objections, Motions to Dismiss, Standards of Review, De Novo Review, Motions to Dismiss, Failure to State Claim, Dismissal, Involuntary Dismissals, Failure to State Claims, Antitrust & Trade Law, Consumer Protection, False Advertising, General Overview, Remedies, Injunctions, Permanent Injunctions, Trademark Law, Federal Unfair Competition Law, Business & Corporate Compliance, Elements of False Advertising, Contracts Law, Personal Property, Pleading & Practice, Pleadings, Rule Application & Interpretation, Torts, Business Torts, Unfair Business Practices, Elements, Standards of Care, Reasonable Care, Governments, Agriculture & Food, Product Promotions, Special Care, Children, Lanham Act, State Regulation, Appropriate Standard, Objectivity