I’ll Pay You $1,000,000 if this Blog Post is Wrong
posted by Dave Hoffman
Contract professors are excited by this lawsuit out of Texas, in which law student Dustin Kolodziej sued Orlando attorney Cheney Mason for failing to pay up on a boast he made while being interviewed on Dateline.
NBC’s Ann Curry asked whether there was enough time for [Mason's client] to commit [a crime]. An unidentified person said, “The defense says no.”
“I challenge anybody to show me,” Mason said. “I’ll pay them a million dollars if they can do it.”
Kolodziej did it, though some quick driving, and he now wants his million dollar reward, under a theory of a breach of a unilateral contract.
The case isn’t frivolous per se, but it is unlikely that Kolodziej will make it past summary judgment. This seems like a textbook example of a boastful puff which no reasonable person in Kolodziej’s shoes would believe constituted an offer. As in the new casebook classic Leonard v. Pepsico, Inc., 88 F. Supp.2d 116 (S.D.N.Y. 1999), a judge will likely note that the setting (directed at the world, not to a particular person), the offeror’s role (hyperbolic advocacy), the nature of the communication (a “challenge”), and the amount involved (disproportionate to any gain to the offeror) all combine together to destroy the requisite seriousness & formality that distinguish offers from puffs.
Throwing the case out is the right result. Ordinarily courts rely puffery doctrine too often – harming consumers who have relied to their detriment on sellers’ optimism. But here, as in Pepsico, Kolodziej seeks to force a contract on Mason, or at least a settlement. Gotchya contracts like this don’t fit well in any theory justifying enforcement. As an extra weight on the scale here, contractual enforcement would chill a defense lawyer’s efforts on behalf of his client.
This isn’t to say that all publicized rewards are unenforceable. Kodak has just offered $5,000 to some poor kid who failed to meet Megan Fox. Unlike Kolodziej’s case, there is only one potential offeree, the offer is accompanied by a way to communicate acceptance, the amount is reasonable, and Kodak’s goal (to document how a “photograph can connect and change the lives of two complete strangers”) is commercial and understandable.
In the event that you do disagree with me, either about the specifics of the post or about puffery more generally, you are on notice that the title of this post is a joke.
June 24, 2009 at 7:22 pm
Posted in: Contract Law & Beyond, Weird
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Responses (6)
ParatrooperJJ - June 25, 2009 at 4:24 am
The attorney shold have known better. Justice will be served by making him pay out.
The Curmudgeonly Ex-Clerk - June 25, 2009 at 8:58 am
Your conclusions largely seem right to me. “The case isn’t frivolous per se” seems a fairly kind way to characterize this law student’s rather unnecessary lawsuit. That said, I think you are wrong to claim that “contractual enforcement would chill a defense lawyer’s efforts on behalf of his client.” Clients have the right to zealous representation, but does that really include a right to have one’s attorney appear on television and make what we apparently agree are hyperbolic statements? Aren’t the ethics rules enacted in most U.S. jurisdictions that discourage public statements about ongoing litigation an indication that we generally do not regard such public advocacy as being necessary to a defense? (E.g., Tex. Disc. R. Prof’l Conduct 3.07.) At any rate, the only advocacy that could be chilled if this purported contract were to be enforced would seem to be offers to pay members of the public one million dollars if they can disprove the defense’s theory. I would think that defense counsel can effectively advocate for their clients without making such offers. No?
Seth Finkelstein - June 25, 2009 at 9:19 am
“the amount involved (disproportionate to any gain to the offeror) …”
I think there’s fatal flaw in this step. The whole point of offering a large bounty for a task is the ability to claim that there was a huge amount of money waiting for anyone who could achieve it, but nobody could. That is, it’s not that the amount is a DIRECT gain of that amount to the offeror, but rather it’s meant to be a motivational factor to encourage people to try. And in a high-profile murder case, such an amount is very reasonable.
Maybe a million dollars is hyperbole, but that shouldn’t invalid a challenge itself.
I suggest the court should order payment to the law student at an hourly rate comparable to the expert witnesses used in the case, and treble it as the challenge reward.
Bob Clarke - June 25, 2009 at 12:31 pm
If I read this right, the idiot lawyer has just broken his own line of defense by “puffing” to the media.
Surely he was not acting in the best interests of his client?
Luke - June 26, 2009 at 11:37 am
Don’t make promises you don’t intend to keep.
He made a wager, witnessed by millions.
He lost the wager.
It’s time for him to pay up.
It really is as simple as that.
Kaimipono D. Wenger - June 26, 2009 at 3:14 pm
This makes sense, Dave. When someone announces, “if my opponent wins, I’ll eat my hat!”, they’re not actually promising to eat their hat, are they?
On the other hand, is there a good restitution / reliance argument here for the student?
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