• HOW DOES THE PLAINTIFF TRY TO AVOID THE LAW ON ADVERTISEMENTS AS OFFERS THAT IS UNFAVORABLE TO HIM?
• WHY DOESN'T HE SUCCEED?
• WHAT STANDARD DOES THE COURT USE TO DECIDE WHETHER PEPSI'S ADVERTISEMENT AMOUNTED TO AN OFFER?
• WHAT SPECIFIC CATEGORY OF "NON-OFFERS" DOES THE COURT DISCUSS?
• WHAT FACTS DOES THE COURT RELY ON TO DECIDE THAT THE ADVERTISEMENT IS A "NON-OFFER" OF THIS TYPE?
• WHAT TECHNICAL DEFENSE TO CONTRACT DOES THE COURT DISCUSS?

*WHY DOES THE COURT FIND THAT TECHNICAL DEFENSE APPLIES?

CASE:

88 F.Supp.2d 116 United States District Court, S.D. New York. John D.R. LEONARD, Plainti4, v. PEPSICO, INC., Defendant. Nos. 96 Civ. 5320(KMW), 96 Civ. 9069(KMW)

Aug. 5, 1999. Summary judgment for manufacturer.

Procedural Posture(s): Motion for Summary Judgment. OPINION & ORDER KIMBA M. WOOD, District Judge.

PlaintiW brought this action seeking, among other things, specific performance of an alleged oWer of a Harrier Jet, featured in a television advertisement for defendant's "Pepsi StuW" promotion. Defendant has moved for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the reasons stated below, defendant's motion is granted.

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. The promotion, entitled "Pepsi StuW," 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. Before introducing the promotion nationally, defendant conducted a test of the promotion in the Pacific Northwest from October 1995 to March 1996. A Pepsi StuW catalog was distributed to consumers in the test market, including Washington State. PlaintiW is a resident of Seattle, Washington. While living in Seattle, plaintiW saw the Pepsi StuW commercial that he contends constituted an oWer of a Harrier Jet.

1

ABRIDGED A. The Alleged O4er

Because whether the television commercial constituted an oWer 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-coiWed 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 StuW catalog," as the camera focuses on the cover of the catalog.

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 StuW 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 creatte a paper maelstrom in a classroom devoted to an otherwise dull physics lesson. Finally, 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 stuW you're gonna get."

The teenager opens the cockpit of the fighter and can be seen, helmetless, holding a Pepsi. "[L]ooking very pleased with himself," 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."

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A few seconds later, the following appears in more stylized script: "Drink PepsiGet StuW." With that message, the music and the commercial end with a triumphant flourish.

Inspired by this commercial, plaintiW set out to obtain a Harrier Jet. PlaintiW 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." PlaintiW consulted the Pepsi StuW Catalog. The Catalog features youths dressed in Pepsi StuW regalia or enjoying Pepsi StuW 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. The Catalog includes an Order Form which lists, on one side, fifty-three items of Pepsi StuW merchandise redeemable for Pepsi Points. Conspicuously absent from the Order Form is any entry or description of a Harrier Jet. 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 plaintiW objects to the implication that because an item was not shown in the Catalog, it was unavailable.

The rear foldout pages of the Catalog contain directions for redeeming Pepsi Points for merchandise. These directions note that merchandise may be ordered "only" with the original Order Form. 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.

Although plaintiW 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." Reevaluating his strategy, plaintiW "focused for the first time on the packaging materials in the Pepsi StuW promotion," and realized that buying Pepsi Points would be a more promising option. Through acquaintances, plaintiW ultimately raised about $700,000.

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ABRIDGED B. Plainti4's E4orts to Redeem the Alleged O4er

On or about March 27, 1996, plaintiW submitted an Order Form, fifteen original Pepsi Points, and a check for $700,008.50. PlaintiW appears to have been represented by counsel at the time he mailed his check; the check is drawn on an account of plaintiW's first set of attorneys. At the bottom of the Order Form, plaintiW wrote in "1 Harrier Jet" in the "Item" column and "7,000,000" in the "Total Points" column. In a letter accompanying his submission, plaintiW stated that the check was to purchase additional Pepsi Points "expressly for obtaining a new Harrier jet as advertised in your Pepsi StuW commercial."

On or about May 7, 1996, defendant's fulfillment house rejected plaintiW's submission and returned the check, explaining that:

The item that you have requested is not part of the Pepsi StuW 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 creaate 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.

PlaintiW'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 StuW commercial . . . and it clearly oWers 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. . . .

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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 plaintiW that:

I find it hard to believe that you are of the opinion that the Pepsi StuW commercial ("Commercial") really oWers 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.

On or about June 17, 1996, plaintiW mailed a similar demand letter to defendant.

[Procedural History Omitted]

. . . . PepsiCo moved for summary judgment pursuant to Federal Rule of Civil Procedure 56. . . .

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 Comm'rs, 834 F.2d 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 law. See Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Citizens Bank v. Hunt, 927 F.2d 707, 710 (2d Cir.1991).

[Additional law re summary judgment standard omitted.] 5

ABRIDGED

2. ChoiceofLaw

[Omitted.]

As plaintiW 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."

B. Defendant's Advertisement Was Not An O4er

1. Advertisements as O4ers. The general rule is that an advertisement does not constitute an oWer. 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 oWers 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. It is of course possible to make an oWer 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 oWer 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.

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1 Arthur Linton Corbin & Joseph M. Perillo, Corbin on Contracts 2.4, at 116- 17 (rev. ed.1993) (emphasis added); see also 1 E. Allan Farnsworth, Farnsworth on Contracts 3.10, at 239 (2d ed.1998); 1 Samuel Williston & Richard A. Lord, A Treatise on the Law of Contracts 4:7, at 286-87 (4th ed.1990). . . . [Omitted]

An advertisement is not transformed into an enforceable oWer merely by a potential oWeree's expression of willingness to accept the oWer through, among other means, completion of an order form. In Mesaros v. United States, 845 F.2d 1576 (Fed.Cir.1988), for example, the plaintiWs 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 empty-handed. See id. at 1578-80. The court began by noting the "well-established" rule that advertisements and order forms are "mere notices and solicitations for oWers which creatte no power of acceptance in the recipient." Id. at 1580; see also Foremost Pro Color, Inc. v. Eastman Kodak Co., 703 F.2d 534, 538-39 (9th Cir.1983) ("The weight of authority is that purchase orders such as those at issue here are not enforceable contracts until they are accepted by the seller."); 5 Restatement (Second) of Contracts 26 ("A manifestation of willingness to enter a bargain is not an oWer 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. . . . Under these principles, plaintiW's letter of March 27, 1996, with the Order Form and the appropriate number of Pepsi Points, constituted the oWer. There would be no enforceable contract until defendant accepted the Order Form and cashed the check.

The exception to the rule that advertisements do not createe any power of acceptance in potential oWerees is where the advertisement is "clear, definite, and explicit, and leaves nothing open for negotiation," in that circumstance, "it constitutes an oWer, acceptance of which will complete the contract." Lefkowitz v. Great Minneapolis Surplus Store, 86 N.W.2d 689, 691 (Minn. 1957). In Lefkowitz, defendant had published a newspaper announcement

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stating: "Saturday 9 AM Sharp, 3 Brand New Fur Coats, Worth to $100.00, First Come First Served $1 Each." Id. at 690. Mr. Morris Lefkowitz arrived at the store, dollar in hand, but was informed that under defendant's "house rules," the oWer was open to ladies, but not gentlemen. See id. The court ruled that because plaintiW 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 So.2d 75, 79 (La.Ct.App.1955) (finding that newspaper advertisement was suWiciently certain and definite to constitute an oWer).

The present case is distinguishable from Lefkowitz. First, the commercial cannot be regarded in itself as suWiciently definite, because it specifically reserved the details of the oWer to a separate writing, the Catalog. The commercial itself made no mention of the steps a potential oWeree would be required to take to accept the alleged oWer of a Harrier Jet. The advertisement in Lefkowitz, in contrast, "identified the person who could accept." Corbin, supra, 2.4, at 119. [Omitted]

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 oWer. . . . [T]he absence of any words of limitation such as "first come, first served," renders the alleged oWer suWiciently indefinite that no contract could be formed. See Mesaros, 845 F.2d at 1581. [Omitted]

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 plaintiW rests much of his argument.

2. RewardsasO4ers

In opposing the present motion, plaintiW largely relies on a diWerent species of unilateral oWer, involving public oWers of a reward for performance of a specified act. Because these cases generally involve public declarations regarding the eWicacy or trustworthiness of specific products, one court has aptly characterized these authorities as "prove me wrong" cases. See Rosenthal v. Al Packer Ford, 374 A.2d 377, 380 (Md. App. 1977). The most

8

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venerable of these precedents is the case of Carlill v. Carbolic Smoke Ball Co., 1 Q.B. 256 (Court of Appeal, 1892), a quote from which heads plaintiW's memorandum of law: "[I]f 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 Q.B. at 268 (Bowen, L.J.).

[Discussion of Carbolic Smoke Ball case omitted.]

Like Carbolic Smoke Ball, the decisions relied upon by plaintiW involve oWers of reward. In Barnes v. Treece, 549 P.2d 1152 (Wash. App. 1976), for example, the vice-president of a punchboard distributor, in the course of hearings before the Washington State Gambling Commission, asserted that, "'I'll put a hundred thousand dollars to anyone to find a crooked board. If they find it, I'll pay it.' " Id. at 1154. PlaintiW, a former bartender, heard of the oWer and located two crooked punchboards. Defendant, after reiterating that the oWer was serious, providing plaintiW with a receipt for the punchboard on company stationery, and assuring plaintiW that the reward was being held in escrow, nevertheless repudiated the oWer. See id. at 1154. The court ruled that the oWer was valid and that plaintiW was entitled to his reward. See id. at 1155. . . . Other "reward" cases underscore the distinction between typical advertisements, in which the alleged oWer is merely an invitation to negotiate for purchase of commercial goods, and promises of reward, in which the alleged oWer is intended to induce a potential oWeree to perform a specific action, often for noncommercial reasons. . . .

In the present case, the Harrier Jet commercial did not direct that anyone who appeared at Pepsi headquarters with 7,000,000 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. PlaintiW states that he "noted that the Harrier Jet was not among the items described in the catalog, but this did not aWect [his] understanding of the oWer." It should have.

9

ABRIDGED

. . . . Because the alleged oWer in this case was, at most, an advertisement to receive oWers rather than an oWer of reward, plaintiW cannot show that there was an oWer made in the circumstances of this case.

C. An Objective, Reasonable Person Would Not Have Considered the Commercial an O4er

PlaintiW's understanding of the commercial as an oWer must also be rejected because the Court finds that no objective person could reasonably have concluded that the commercial actually oWered consumers a Harrier Jet.

1. ObjectiveReasonablePersonStandard

In evaluating the commercial, the Court must not consider defendant's subjective intent in making the commercial, or plaintiW's subjective view of what the commercial oWered, but what an objective, reasonable person would have understood the commercial to convey. See Kay-R Elec. Corp. v. Stone & Webster Constr. Co., 23 F.3d 55, 57 (2d Cir.1994) ("[W]e 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 F.2d at 1581 ("A basic rule of contracts holds that whether an oWer has been made depends on the objective reasonableness of the alleged oWeree's belief that the advertisement or solicitation was intended as an oWer."); Farnsworth, supra, 3.10, at 237; Williston, supra, 4:7 at 296-97.

If it is clear that an oWer was not serious, then no oWer has been made:

What kind of act creattes a power of acceptance and is therefore an oWer? It must be an expression of will or intention. It must be an act that leads the oWeree reasonably to conclude that a power to creatte 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 creatte legal relations.

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Corbin on Contracts, 1.11 at 30 (emphasis added). An obvious joke, of course, would not give rise to a contract. See, e.g., Graves v. Northern N.Y. Pub. Co., 22 N.Y.S.2d 537 (1940) . . . . On the other hand, if there is no indication that the oWer is "evidently in jest," and that an objective, reasonable person would find that the oWer was serious, then there may be a valid oWer. See Barnes, 549 P.2d at 1155 . . . . ; see also Lucy v. Zehmer, 84 S.E.2d 516, 518, 520 (VA 1954) (ordering specific performance of a contract to purchase a farm despite defendant's protestation that the transaction was done in jest as "'just a bunch of two doggoned drunks bluWing' ").

2. NecessityofaJuryDetermination [Omitted.]

3. WhethertheCommercialWas"EvidentlyDoneInJest"

PlaintiW's insistence that the commercial appears to be a serious oWer requires the Court to explain why the commercial is funny. Explaining why a joke is funny is a daunting task; as the essayist E.B. White has remarked, "Humor can be dissected, as a frog can, but the thing dies in the process. . . ." The commercial is the embodiment of what defendant appropriately characterizes as "zany humor."

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 7:58 AM," evoke military and espionage thrillers. The implication of the commercial is that Pepsi StuW 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 puWery, not as statements of fact, see, e.g., Hubbard v. General Motors Corp., 95 Civ. 4362(AGS), 1996 WL 274018, at *6 (S.D.N.Y. May 22, 1996) (advertisement describing automobile as "Like a Rock," was mere puWery, not a warranty of

11

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quality); Lovett, 207 N.Y.S. 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 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 youth's concern for his coiWure appears to extend to his flying without a helmet. Finally, the teenager's comment that flying a Harrier Jet to school "sure beats the bus" evinces an improbably insouciant attitude toward the relative diWiculty and danger of piloting a fighter plane in a residential area, as opposed to taking public transportation.

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 teenager's schoolmates gape in admiration, ignoring their physics lesson. The force of the wind generated by the Harrier Jet blows oW one teacher's 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 student's fighter jet, or condone the disruption the jet's 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: AV-8B Harrier II (last modified Dec. 5, 1995) . Manufactured by McDonnell Douglas, the Harrier Jet played a significant role in the air oWensive 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 beealbeit a roaring 14-ton butterfly and a bee with 9,200 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 Jet's well-documented function in attacking and destroying surface and air targets, armed reconnaissance and air interdiction, and oWensive and defensive anti-aircraft warfare, depiction of

12

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such a jet as a way to get to school in the morning is clearly not serious even if, as plaintiW contends, the jet is capable of being acquired "in a form that eliminates [its] potential for military use."

Fifth, the number of Pepsi Points the commercial mentions as required to "purchase" the jet is 7,000,000. To amass that number of points, one would have to drink 7,000,000 Pepsis (or roughly 190 Pepsis a day for the next hundred yearsan unlikely possibility), or one would have to purchase approximately $700,000 worth of Pepsi Points. The cost of a Harrier Jet is roughly $23 million dollars, a fact of which plaintiW was aware when he set out to gather the amount he believed necessary to accept the alleged oWer. Even if an objective, reasonable person were not aware of this fact, he would conclude that purchasing a fighter plane for $700,000 is a deal too good to be true.

PlaintiW argues that a reasonable, objective person would have understood the commercial to make a serious oWer of a Harrier Jet because there was "absolutely no distinction in the manner" in which the items in the commercial were presented. PlaintiW also relies upon a press release highlighting the promotional campaign, issued by defendant, in which "[n]o mention is made by [defendant] of humor, or anything of the sort." These arguments suggest merely that the humor of the promotional campaign was tongue in cheek. Humor is not limited to what Justice Cardozo called "[t]he rough and boisterous joke ... [that] evokes its own guWaws." Murphy v. Steeplechase Amusement Co., 166 N.E. 173, 174 (N.Y. 1929). In light of the obvious absurdity of the commercial, the Court rejects plaintiW's argument that the commercial was not clearly in jest.

4. Plainti4'sDemandsforAdditionalDiscovery [Omitted.]

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

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of $500 or more is not enforceable by way of action or defense unless there is some writing suWicient 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. N.Y.U.C.C. 2-201(1) . . . .

There is simply no writing between the parties that evidences any transaction. .... Becausetheallegedcontractdoesnotmeettherequirementsofthe Statute of Frauds, plaintiW has no claim for breach of contract or specific performance.

E. Plainti4's Fraud Claim.

[Omitted.]

III. Conclusion

In sum, there are three reasons why plaintiW's demand cannot prevail as a matter of law. First, the commercial was merely an advertisement, not a unilateral oWer. Second, the tongue-in-cheek 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 suWicient to satisfy the Statute of Frauds.

For the reasons stated above, the Court grants defendant's motion for summary judgment. The Clerk of Court is instructed to close these cases. Any pending motions are moot.

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