Monday, September 7, 2009
As I mentioned in introducing last week’s Limerick, although Lefkowitz and Izadi cover much the same ground, I think they go well together. In fact, I also have the students read Leonard v. Pepsico., Inc., which is always good for a laugh.
My students raised some interesting issues with respect to Lefkowitz. As you may or may not recall, Lefkowitz is about a guy who responds to an ad advertising various fur coats and stoles for sale on a first-come-first-served basis for $1. When Lefkowitz shows up and tries to buy a fur, the store owners say that they have a policy against selling to men. Lefkowitz tries the trick again two weeks later and gets the same response. He sues, claiming breach of a contract for sale. The court sides with Lefkowitz, construing the ad as an unambiguous offer.
We had a really interesting discussion of damages this time around. The court gave Lefkowitz his expectation damages for the second failed attempt at purchase, which was for a stole valued at $139. The court refused to grant him damages for his first failed attempt because the ad was ambiguous as to the value of the coats: “worth to $100.” We explored whether Lefkowitz’s attorneys could not have elicited deposition testimony or gotten some appraisal of the coats. Perhaps if they failed to do so, that’s their fault and Lefkowitz was properly precluded.
But some of my students wondered whether Lefkowitz should be entitled to collect for his second attempt at purchase. After all, it seems likely that he was unaware of the store policy against selling women’s coats to men when he first showed up in the Great Minneapolis Surplus Store. But the second time he came, he knew that the ad in question was not an offer directed at him. Why grant him recovery? It seems like the court split the baby, but they gave Lefkowitz the wrong half. Eww; that’s a hideous metaphor, but you get the point.
I am somewhat sympathetic to Lefkowitz. I don’t know about Izadi. Izadi claims to have construed Machado Ford’s ad as meaning that he could get $3000 off a new Ford car or truck if he traded in “any vehicle.” He showed up with a vehicle which the court acknowledged was likely worth far less than $3000. Was it a tricycle? That’s a vehicle. I feel for Machado Ford, because they were arguing before a highly unsympathetic Judge Alan R. Schwartz. I’ve had that experience and it was not pleasant.
Judge Schwartz got himself in a lather about what he took to be an intentionally misleading advertisement. In order to establish that the advertisement was misleading, one might try to learn how many people were actually mislead. As far as I can tell, only Izadi claimed to have been taken in by the ad -- after all, the case is not a class action -- and I suspect that Izadi was not mislead at all but in fact was opportunistic in his reading of the ad.
But here’s the rub: Judge Schwartz offers two justifications for ruling against Machado Ford. First, he reads the ad as an unambiguous offer. That’s a bit hard to swallow. The ad is confusing, but that argues for rather than against ambiguity. The second justification is that people ought not to be allowed to take advantage of consumers with intentionally misleading ads. I certainly agree with that, but Judge Schwartz is able to find no Florida authority establishing that rule as a matter of contract law.
I thus use this case to introduce my students to the problems of institutional competence and judge-made law. In order to do so, I edit out the case which indicates that defendant could also be liable under relevant Florida consumer protection statutes.
As Judge Schwartz notes, other states have adopted the rule of contracts law that “a binding offer may be implied from the very fact that deliberately misleading advertising intentionally leads the reader to the conclusion that one exists,” but Florida courts had not recognized that rule. Why not leave it to the legislature to do so, I ask my students. This can lead to an interesting discussion of why judges often feel that they have to make or adopt legal rules on the fly rather than wait for the slugs in the legislature to act.
Well, this post is already too long. I’ll have to compose a Limerick for Leonard so that I can explain where that case fits in next week.
Izadi v. Machado (Gus) Ford, Inc..
Want to make a used-car dealer weep?
Try to trade in your rusting junk-heap,
Then pretend that your mad
On account of his ad
And seek justice not blind but asleep.