A television commercial depicting a military jet is not an offer of goods; any objective person cannot reasonably conclude that a television commercial was an actual offer of a military jet of which consumers could accept; a television commercial that was an alleged contract did not satisfy the New York statute of frauds.
In 1995, defendant-appellee Pepsico, Inc. conducted a promotion in which it offered merchandise in exchange for "points" earned by purchasing Pepsi Cola. A television commercial aired by Pepsico depicted a teenager gloating over various items of merchandise earned by Pepsi points, and culminated in the teenager arriving at high school in a Harrier Jet, a fighter aircraft of the United States Marine Corps. For each item of merchandise sported by the teenager (a T shirt, a jacket, sunglasses), the ad noted the number of Pepsi points needed to get it. When the teenager is shown in the jet, the ad prices it as 7 million points. The teenager sought an action for specific performance of an alleged offer of a fighter jet by the corporation. The teenager alleged that the ad was an offer, that he accepted the offer by tendering the equivalent of 7 million points, and that the corporation breached its contract to deliver the jet. The corporation filed a motion for summary judgment. It characterized the use of the Harrier jet in the ad as a hyperbolic joke ("zany humor"), cites the ad's reference to offering details contained in the promotional catalog (which contains no Harrier fighter plane), and argued that no objective person would construe the ad as an offer for the Harrier jet. The district court granted the corporation's motion for summary judgment on the grounds (1) that the commercial did not amount to an offer of goods; (2) that no objective person could reasonably have concluded that the commercial actually offered consumers the jet; and (3) that the alleged contract could not satisfy the New York statute of frauds. The teenager appealed.
Did the trial court properly grant summary judgment to the PepsiCo corporation?
On appeal, the court affirmed for substantially the reasons stated by the district court.