By Charles Kramer
In 1991, Richard Overton launched what turned out to be a short lived, but long exalted lawsuit. Now, nineteen years later, it remains one of the best lawsuits ever filed, even if both the trial Court and Court of Appeals failed to see its merit. The facts, as reported by the appellate court, were as follows:
Plaintiff [Overton] sued defendant [the then still American owned Anheurser-Busch], a brewer and seller of beer and malt liquor, claiming that defendant had violated the provisions of [a Michigan statute] by placing before the public advertisements for its products that contain "statements and/or representations which are untrue, deceptive and/or misleading." As a result, plaintiff claimed, he and the general public had been led to consume defendant's products, which defendant knew was dangerous and likely to cause serious health problems, including addiction and death. In support of his claims, plaintiff pointed to defendant's television advertisements featuring Bud Light as the source of fantasies coming to life, fantasies involving tropical settings, and beautiful women and men engaged in unrestricted merriment. Plaintiff sought monetary damages in excess of $ 10,000, alleging that defendant's misleading advertisements had caused him physical and mental injury, emotional distress, and financial loss.
In short, Sir Overton sued because drinking Bud Light did not cause him to be transported to a Tahitian Island and did not cause gorgeous women to suddenly appear and party with him --- despite the clear claim of the brewer’s ads that such things happen to those who choose the correct libation. Moreover, he claimed he was exposed to health risks from the beer that he would not have suffered but for his attempt at beer-aided transportation and transmutation. Sadly, the Courts on all levels somehow believed that such grandiose claims could not be the basis of fraud, however, because no one would possibly believe them. Apparently the judges did not hang out around the same post offices, parks, and undergraduate college libraries that some of us used to frequent. They also obviously never met my nephew’s video-game addicted “friends” who clearly believe virtually anything they see on a screen. In any event, the Trial Court granted summary judgment and the appellate brethren affirmed. Still, just short of two decades years later, the Overton case continues to appear on a myriad of lists purporting to identify unique, weird, strange, and even frivolous lawsuits. It also, most importantly, remains my favorite claim.
Yet, as we celebrate the anniversary of this noble effort at advertising reform, it is tempting to actually look at the Court’s decision to see if it was correctly decided. Surprisingly, perhaps, many scholars who’ve taken that plunge have disagreed with the Court’s decision. It turns out that a review of applicable precedent would seem to indicate that the question of whether or not a statement can reasonably be relied upon is generally one of “fact” for a jury to decide, yet the Court issued summary judgment, and that ruling was affirmed. Thus, Mr. Overton’s case is not only an example of a “fun” case, it is also an example of a court deciding by fiat that the average person would not believe an ad purported to be factual, while simultaneously refusing to let the average person (i.e. the jury) decide the question. Paternalism gone awry? Perhaps. It reminds me of my second favorite case, the one I studied in Crim. Law class many years ago. An ingenious man took out a classified advertisement (remember those?) in twenty-five major newspapers (remember those?) in which he advertised: “Get Rich Without Any Real Effort. Send $1.00 and Learn How” and then provided a PO Box address. When people sent in their dollar, they received a postcard back that read simply “Now, you know how.” The entrepreneur was charged with criminal fraud, AND WAS CONVICTED!!! That is a result that has always bothered me, as I could see, and still can see, nothing false, fraudulent or misleading in his ad. I guess if he would have sent everyone a beer along with the message, he may have been better off.
© 2010 under analysis LLC. Under analysis is a nationally syndicated column of the Levison Group. Charles Kramer is a principal of the St Louis, Missouri law firm, Riezman Berger, PC. You may send comments or criticisms to the Levison Group c/o this newspaper or direct via email to comments@levisongroup.com
