IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT, IN AND FOR DADE COUNTY, FLORIDA
GENERAL JURISDICTION DIVISION
CASE NO: 96-15647
JOHN D.R. LEONARD,
Plaintiff
vs.
PEPSICO, INC.,
Defendant
COMPLAINT
Plaintiff, JOHN D.R. LEONARD, sues Defendant, PEPSICO, INC. and alleges as follows:
JURISDICTION AND VENUE
1. This is an action for damages in excess of $15,000.00 exclusive of interest, costs and attorney's fees.
2. Plaintiff, JOHN D.R. LEONARD ("LEONARD"), is a resident of Seattle, Washington, and is otherwise sui juris.
3. Defendant, PEPSICO, INC. ("PEPSI"), is a North Carolina corporation with its principal place of business in Purchase, New York at Anderson Hill Road, Purchase, New York, 10577, and is doing business in the state of Florida.
FACTUAL ALLEGATIONS
4. PEPSI is a corporation primarily engaged in the business of producing and distributing soft drinks world wide. To promote the sale of its products here in the United States, PEPSI launched a national advertising campaign utilizing various forms of media, the most significant of which is the use of television commercials.
5. Specifically, this national advertising campaign, coined, "Pepsi Stuff," consists of offering various merchandise, for sale, to the general public in exchange for Pepsi Points. Pepsi Points are actually a promotional item, much like phoney money, which entitle a participant to receive prizes based upon the amount of points assigned to a particular prize. Each prize offered in the Pepsi Stuff campaign can be obtained by a participant simply by tendering his/her Pepsi Points to PEPSI.
6. Pepsi Points can be acquired in two ways. One method is to purchase specifically marked packages of PEPSI products from vendors throughout the country who sell PEPSI products. The second method is to purchase points directly from PEPSI, via an order form, for 10 cents per point. There is no limit to the amount of points one is allowed to purchase.
7. The most notable of the Pepsi Stuff television commercials feature a new Harrier Jet, among as assortment of other prizes, which are offered to the general public. As part of the television commercial, PEPSI conspicuously displayed the amount of Pepsi Points needed to obtain a particular prize. PEPSI offered the new Harrier Jet in the television commercial for seven (7) million Pepsi Points.
8. LEONARD first noticed the Pepsi Stuff television commercials offering the new Harrier Jet in Seattle, Washington, which commercial was also broadcast in the state of Florida. This television commercial actually depicts an individual flying to school in his new Harrier Jet and then offers the jet as one of the Pepsi Stuff prizes.
9. LEONARD, in accordance with the rules and regulations of the Pepsi Stuff promotional campaign, accepted PEPSI's offer of the new Harrier Jet, by obtaining 15 original Pepsi Points and then purchasing the remaining Pepsi Points at $.10 a point for 6,999,985 points, for the total sum of $699,998.50.
10. On March 28, 1996, LEONARD duly tendered the seven (7) million Pepsi Points to PEPSI in exchange for the new Harrier Jet by delivering to PEPSI (1) an original Pepsi Stuff order form, (2) 15 original Pepsi Points, and (3) a check in the amount of $700,008.50 (for the remaining 6,999,985 points, plus shipping and handling), all in accordance with the rules and regulations of the Pepsi Stuff promotion. A true and correct copy of those items are attached hereto as Composite Exhibit "A."
11. Surprisingly, on May 7, 1996, PEPSI, by and through its employees and/or agents, Young America Corporation, failed and refused to process the items contained in Composite Exhibit "A" tendered by LEONARD, and more importantly failed and refused to provide the new Harrier Jet to LEONARD.
12. On May 14, 1996, LEONARD resubmitted the original 15 Pepsi Points, the original order form and check for $700,008.50 (Composite Exhibit "A"), to PEPSI's Agent, Young America, which was refused a second time.
13. On May 24, 1996, LEONARD resubmitted the entire package (Composite Exhibit "A") to Pepsi's New York headquarters. PEPSI refused to process the order as well.
14. To date, despite LEONARD'S reliance on PEPSI'S nationally televised offer of a new Harrier Jet, in exchange for seven (7) million Pepsi Points, PEPSI has failed and refused to deliver this prize, thereby breaching its own offer to the detriment of LEONARD.
15. All conditions precedent to this action have been performed, excused or waived.
16. LEONARD has retained the undersigned law firm for the purposes of maintaining this suit and is obligated to pay it a reasonable fee.
COUNT I
[Specific Performances]
17. Plaintiff hereby realleges and incorporates paragraphs 1 through 16 as if fully set forth herein.
18. PEPSI, by and through its national advertising campaign, known as Pepsi Stuff, offered a new Harrier Jet for sale to the general public under certain conditions precedent, namely the tender of seven (7) million Pepsi Points, as more particularly described above.
19. On March 28, 1996, LEONARD, in accordance with the rules and regulations of the Pepsi Stuff promotion, accepted the offer, met all of the above conditions precedent (which included providing the advertised consideration to PEPSI for the new Harrier Jet) and a binding contract was formed.
20. LEONARD is ready, willing and able to take possession of the new Harrier Jet, however, PEPSI has failed and refused to fulfill its contractual obligations to LEONARD by not delivering the new Harrier Jet in exchange for seven (7) million Pepsi Points tendered by LEONARD. Accordingly, PEPSI has breached the contract between the parties.
21. Since the subject matter of the contract, a new Harrier Jet, is of such a special nature and peculiar value and is a specifically identifiable and inherently unique item, LEONARD is without an adequate remedy at law to redress his injuries if PEPSI is not required to perform its obligations under the contract by delivering the new Harrier Jet to LEONARD.
22. As a direct and proximate result of PEPSI's breach of contract, LEONARD has and will continue to suffer damages, unless PEPSI completes its performance of the contract as described above.
WHEREFORE, Plaintiff, LEONARD, prays that this Honorable Court: (1) exercise its equitable powers over the subject matter of this action requiring specific performance of the contract as between the parties; (2) enter a judgment, order or decree directing or otherwise requiring PEPSI to accept the tender of seven (7) million Pepsi Points from LEONARD and deliver and/or otherwise transfer the new Harrier Jet to LEONARD; and (3) fashion any and all appropriate remedies the Court deems necessary and proper to carry out performance of the contract by PEPSI to LEONARD.
COUNT II
[Breach of Contract (In the Alternative)]
23. Plaintiff hereby realleges and incorporates paragraphs 1 through 16 as if fully set forth herein.
24. PEPSI, by and through its national advertising campaign, known as Pepsi Stuff, offered a new Harrier Jet for sale to the general public under certain conditions precedent, namely the tender of seven (7) million Pepsi Points, as more particularly described above.
25. On March 28, 1996, LEONARD, in accordance with the rules and regulations of the Pepsi Stuff promotion, accepted the offer, met all of the above conditions precedent and a binding contract was formed.
26. PEPSI has failed to fulfill its obligations to LEONARD and more particularly set forth above and therefore, PEPSI has breached the contract between the parties.
27. As direct and proximate result of PEPSI's breach of contract, LEONARD has suffered damages.
WHEREFORE, Plaintiff LEONARD, demands judgment against Defendant, PEPSI, for damages, together with attorney's fees and costs.
COUNT III
[Fraud]
28. Plaintiff hereby realleges and incorporates paragraphs 1 through 16 as if fully set forth herein.
29. PEPSI, by and through its nationally advertised television commercial featuring a new Harrier Jet, made knowingly false statements and representations to LEONARD, concerning its offer of the new Harrier Jet as one of the prizes which could be obtained in the Pepsi Stuff promotional campaign.
30. Specifically, PEPSI misrepresented the fact that a new Harrier Jet could be acquired by a member of the general public for seven (7) million Pepsi Points, when in fact, PEPSI had absolutely no intentions of fulfilling its promise to do so.
31. PEPSI knowingly made these false statements and representations in its television commercial, which statements were material misrepresentations of fact, with the intent to induce members of the general public, such as LEONARD, into purchasing PEPSI products and thereby increasing its profits. Accordingly, by virtue of its running the Pepsi Stuff commercial nationwide, it was foreseeable by PEPSI that the offer of a new Harrier Jet would either directly increase the sale of its products for Pepsi Points or the purchase of Pepsi Points itself.
32. LEONARD detrimentally relied on PEPSI's false statements of material fact when on March 28, 1996, LEONARD duly tendered seven (7) million Pepsi Points to PEPSI in exchange for the new Harrier Jet by delivering to PEPSI (1) an original Pepsi Stuff order form, (2) 15 original Pepsi Points, and (3) a check in the amount of $700,008.50 (for the remaining 6,999,985 points, plus shipping and handling), all in accordance with the rules and regulations of the Pepsi Stuff promotion.
33. As a direct and proximate result of PEPSI's failure and refusal to honor, accept and process LEONARD's tender of the items set forth in Composite Exhibit "A", to obtain seven (7) million Pepsi Points in exchange for a new Harrier Jet, LEONARD has suffered damages.
WHEREFORE, Plaintiff, LEONARD, demands judgment against Defendant, PEPSI, for damages and such other and further relief as this Court deems just and proper and reserves the right to amend the Complaint to seek punitive damages upon proper proffer pursuant to Florida Statutes.
COUNT IV
[Deceptive and Unfair Trade Practices]
34. Plaintiff hereby realleges and incorporates paragraphs 1 through 16 as if fully set forth herein.
35. This action is brought against PEPSI pursuant to Florida's Deceptive and Unfair Trade Practices Act, Sec. 501.201, Florida Statutes, et. seq.
36. PEPSI, through its nationally advertised television commercials as described above, offered a new Harrier Jet as one of the prizes that could be obtained in the Pepsi Stuff promotional campaign, which commercial was broadcast in the state of Florida.
37. PEPSI misrepresented and misled the general public, and particularly LEONARD, in the television advertisement, by offering a new Harrier Jet for seven (7) million Pepsi Points, when in fact, PEPSI had absolutely no intention of fulfilling its promise to do so.
38. PEPSI's failure and refusal to provide LEONARD with a new Harrier Jet after LEONARD had accepted its offer by delivering to PEPSI (1) an original Pepsi Stuff order form, (2) 15 original Pepsi Points, and (3) a check in the amount of $700,008.50 (for the remaining 6,999,985 points, plus shipping and handling), all in accordance with the rules and regulations of the Pepsi Stuff promotion, constitutes a willful violation of Florida's Deceptive and Unfair Trade Practices Act, Sec. 501.201 Florida Statutes, et. seq. and as a direct and proximate result LEONARD has suffered damages.
WHEREFORE, Plaintiff LEONARD, demands judgment against Defendant, PEPSI, for damages, including attorney's fees and costs as provided by statute and for such other and further relief as this Court deems just and proper.
COUNT V
[Misleading Advertising]
39. Plaintiff hereby realleges and incorporates paragraphs 1 through 16 as if fully set forth herein.
40. This action is brought against PEPSI pursuant to Florida's Fraudulent Practices Act, Sec. 817.41 Florida Statutes (1993).
41. PEPSI, through its nationally advertised television commercials offering a new Harrier Jet, which a commercial was broadcast in the state of Florida, made knowingly false, deceptive and misleading representations to LEONARD, as a member of the general public, concerning its offer of the new Harrier Jet as one of the prizes which could be obtained in the Pepsi Stuff promotional campaign.
42. Specifically, PEPSI misrepresented a material fact that a new Harrier Jet could be acquired for seven (7) million Pepsi Points, when in fact, PEPSI had absolutely no intentions of fulfilling its promise to do so.
43. PEPSI knowingly made these false, deceptive and misleading statements in its television commercial, for the purpose of inducing or causing members of the general public, and particularly LEONARD, to purchase its products or Pepsi Points under false pretenses.
44. Such practices constitute a willful violation of Sec. 817.41, Florida Statutes (1993) and as a direct and proximate result, LEONARD has suffered damages.
WHEREFORE, Plaintiff LEONARD, demands judgment against Defendant, PEPSI, for damages, including attorney's fees and costs as provided by statute and for such other and further relief as this Court deems just and proper.
DEMAND FOR JURY TRIAL
45. Plaintiff demands a trial by jury of all issues so triable as a matter of right.
Respectfully submitted this 6th day of August, 1996.
SCHANTZ, SCHATZMAN & AARONSON, P.A.
Attorney for John D. R. Leonard
Suite 1050, First Union Financial Center 200 South Biscayne Boulevard Miami, FL 33131-2395 (305) 371-3100
