September 25, 2012 7:26pm PT by Ken Basin
Game Show Trickery Lawsuit: Do the Contestants Have a Case? (Guest Column)
Sure, most of America might be abuzz about how poor refereeing
definitely might have swung the outcome of the game between the Green Bay Packers and Seattle Seahawks on Monday Night Football. But this week, the NFL doesn’t have a monopoly on sports-and-games fairness scandals (even if its scandals might have the most effect on Vegas betting lines and fantasy football leagues everywhere). That’s because of a new case that will surely rock the (narrow, quirky, cloistered) world of game show and trivia nerds everywhere.
So here’s a trivia question for you: What happens when producers of a game show tell two contestants there will be no trick questions on the show and then throw something that might be considered a “trick question,” causing those contestants to blow $580,000 in potential winnings? Do the contestants:
A) Quietly retreat to their homes and try never to look at the chain of excoriating comments on the YouTube video of their defeat.
B) Launch an inspiring grass-roots campaign on the Internet to get a second run on the show.
C) Re-evaluate their personal choices and embrace new lives of monastic asceticism, untempted by the siren’s call of game show winnings.
If you guessed D, congratulations! You win … the rest of this article. So can two contestants who lost it all on TV win it back in the courtroom?
Before we answer that question, you must understand: I’m a particularly qualified expert to opine on this subject. Sure, the law degree is nice, but lots of people have those. I, on the other hand, have particular insight on the question of what happens when you, oh, I don’t know, lose a half-million dollars in winnings (give or take) in the span of about 4 minutes in front of a national network primetime audience. So I think these plaintiffs can take it from me when I say: "Run from this lawsuit. Run like the wind."
Let’s Meet Our Contestants
According to their complaint, Andrew and Patricia Murray appeared on the very first episode of Fox’s Million Dollar Money Drop, a short-lived game show in which contestants wagered a $1 million bank on a series of trivia questions and were then forced to watch as piles of cold hard hundred dollar bills literally fell through floor in front of them when they answered questions incorrectly. It’s a format that perfectly marries America’s intellectual curiosity about trivia and its reality TV-fueled sadistic streak.
It’s also a show with an existing history of minor scandal. Near the beginning of Money Drop’s run in late 2010, another pair of contestants lost a whopping $800,000 on a question asking what product was sold in stores first: a) the Apple Macintosh, b) the Sony Walkman, or c) the Post-It Note. Those contestants answered “Post-It Note” and lost nearly all of their remaining pot ($800,000 out of $880,000) based on the show’s contention that the Walkman was first sold in 1979, followed by Post-Its in 1980. It turned out that Post-Its actually were sold in select cities as early as 1977 (though originally under the name Press & Peel) -- meaning the contestants had been right(-ish). Money Drop producers first stood by their answer and refused to acknowledge even an ambiguity. After public pressure mounted, producers admitted an ambiguity and invited the spurned contestants back to play from question No. 1, even though they were only two questions away from home when their Post-It bubble burst. (Compare and contrast: When faced with a similar “ambiguous” question scandal, Who Wants to Be a Millionaire invited spurned contestant Ed Toutant back to pick up where he left off -- and Ed went on to win $1.86 million.) When the couple told reporters they were unsure whether they wanted to accept the show’s invitation at all, Money Drop host Kevin Pollak basically told The Hollywood Reporter the contestants were big fat whiners who would have lost all that money on the next question anyhow. So the Murrays might have found themselves a rather shady and unsympathetic defendant.
Before the show, the Murrays allege, producers presented them with a take-it-or-leave-it release and rules agreement, in which the couple pre-emptively released the producers from liability for every horrible thing they could ever possibly do to the Murrays up to and including defrauding and killing them, and agreed to bring any claims (which they actually had waived and weren’t supposed to bring at all) before a prohibitively expensive three-judge arbitration panel. The Murrays also might or might not have sold the producers their first-born child (with a right of first negotiation/last refusal on all subsequent children). So in other words, it was a pretty standard reality liability waiver.
The Murrays also were provided a document of written rules for the show, which were subject to change by the producers, either verbally or in writing, at any time, including during the taping of the show. And then the producers (allegedly) promised there would be no trick questions. Well, that must have been a relief.
After a few rounds of play, the Murrays were presented with this question: “According to the data security firm Imperva, what is the most common computer password?” Their choices: a) “Password”; b) “123456”; and c) “I Love You.” The Murrays ultimately wagered all $580,000 they had remaining in their pot on “Password” -- because, you know, everyone knows “Password” is the most common password on the Internet, right? In fact, according to Imperva, “Password” is the fourth-most-common password, behind “123456789” (#3), “12345” (#2) and “123456” (#1). (Doesn’t really sound to you like a trick question, right? More on that below.) When the correct answer was revealed, the Murrays’ money literally fell through the floor, leaving them with nothing to show for the experience but broken hearts and an inevitable future as a YouTube comment-thread punch line.
Now, the Murrays are suing not just for the $580,000 they say they lost to the producers’ nefarious manipulations but for damages for the humiliation of losing that large a sum on national television.
Please State Your Legal Claim in the Form of a Question
What the Murrays might have lacked in judgment and/or knowledge about popular computer passwords, their lawyer has certainly made up for in creativity. He has (sensibly) dedicated significant portions of their complaint to explaining why they should be allowed to sue the producers of Million Dollar Money Drop at all, and why they can bring their claim in state court, when the contract they signed pretty much says the opposite. That’s a subject we’ve covered amply in the past on the LA Law Land blog, and that hurdle could, depending on the judge’s inclinations, be enough to defeat the Murrays’ lawsuit by itself.
But the new legal question raised by the Murrays’ lawsuit essentially boils down to this: Can the producers get away with sticking the Murrays with a trick question when they (allegedly) promised not to? And for that, their lawyer has gotten creative. Normally, in a case involving a written contract (which will often expressly disclaim any oral promises not made in the contract itself), a plaintiff is hard-pressed to bring a claim on the basis of what else they were told -- wink wink, nudge nudge -- on the side.
Here, though, the Murrays have asserted claims based on the federal laws that were created in response to the quiz show scandals of the 1950s, which prohibit producers from “engag[ing] in any artifice or scheme for the purpose of prearranging or predetermining in whole or in part the outcome of a purportedly bona fide contest of intellectual knowledge, intellectual skill or chance.” The producers, say the Murrays, intentionally duped them and other contestants into playing over-aggressively in order to enhance the drama -- and reduce the payouts -- from the show. This, they say, amounts to fraud on the Murrays, and on the viewing public.
Of course, federal quiz show laws were designed to prohibit producers from rigging the outcomes of games outright, by feeding contestants correct answers, making people take falls or otherwise turning a “game show” into essentially scripted television -- not from asking hard or, dare I say it, tricky questions to make contestants stumble. If producers want to make every contestant on their show a big, dramatic loser by asking tough questions, that’s an issue to be resolved in the Nielsen ratings, not the courtroom.
The Murrays’ lawyer also has turned the producers’ aggressively protective terms and conditions against them, arguing that because the producers reserved the right to change the rules of the game verbally at any time, they did, in fact, change the rules when they promised the Murrays no trick questions. And then, by including a trick question, they breached the agreement, as amended by their own promise. Clever girl.
But if the producers’ contract allowed them to change the rules at any time by saying so, and if the producers did change the rules by promising no trick questions, couldn’t the producers have just changed the rules back to “trick questions allowed” at will?
Is “Trick Question” Your Final Answer?
Of course, all of that assumes that the question that stumped the Murrays was actually a trick question, as opposed to just being a hard question. And to make that case, the Murrays make all kinds of observations that, at least to me, seem entirely irrelevant. In particular, they note that “Imperva can hardly be considered a pre-eminent, well-known and reliable source to give a definitive answer to the question ‘what is the most common computer password,’ ” that producers never independently verified Imperva’s analysis of most common computer passwords, that Imperva never conducted its own research into computer passwords but instead analyzed data from a widely publicized hacking incident involving a site known as Rockyou.com and that Imperva itself never claimed to have definitively determined the computer world’s most popular password.
According to the Murrays, a fair question would have read, “According to a hacking incident involving the inadvertent leak of user passwords on the website Rockyou.com, what is the most common computer password?” But that sounds less like a fair question and more like an incomprehensible one.
The fact is, the question that knocked the Murrays out was clear and objective on its face: It asked for a specific piece of information, which is potentially disputed, but it asked by reference to a specific source -- one that had been widely reported when Imperva first released its analysis in 2010. And to be clear, Imperva characterized its report as “identif[ying] the most commonly used passwords.” That was certainly the takeaway from the report, as it was reported by news sources from The New York Times to Canada’s CBC to CBS News’ SmartPlanet.com, among others. It would be one thing if producers had asked for the computer world’s most popular password without referencing a source, as sources could disagree on the question. Because there would either be no correct answer to that question or multiple correct answers, that would be a trick question. But there is literally only one correct answer to the question, “What did Imperva say is the most common computer password?” And it isn’t “Password.” That may might the Million Dollar Money Drop question a hard one, but not a trick one.
It would also help if the Murrays could come up with some credible source showing that Imperva was wrong about “123456” being the most popular computer password, but as far as I can tell, their position on that boils down to, “C’mon! Everyone knows ‘Password’ is the most common password!” (Follow-up question: What if you consider the case-sensitive “Password” and “password” separately? Or am I being too tricky?) Maybe the Murrays would have been happier with a question that read, “What do you think is the most common computer password?”
Thanks for Playing Our Game, and Please Enjoy These Lovely Parting Gifts
At the end of the day, it’s hard to say who’s the bigger rube. Is it the Murrays, who are seeking damages for the humiliation of losing $580,000 on national television, while subjecting themselves to further humiliation by reminding the world about how they lost $580,000 on national television (and more humiliation still when they likely lose their high-profile $580,000 lawsuit)? Or is it their lawyer, who submitted a publicly filed complaint that disclosed his client’s full name, address, phone number and Social Security number to the world?
Maybe the Murrays should be less worried about the $580,000 they lost on Million Dollar Money Drop and more worried about the $580,000 they might soon lose in an incredibly-easy-to-execute identity theft scam. In the meantime, though, they should probably forget about the legal briefs and lost opportunities and just lay back, enjoy the inevitable YouTube memes and try to make the money back on the next big game show phenomenon. Just read the question closely, folks.
Ken Basin is an attorney at Greenberg Glusker in Los Angeles and a contributor to the firm's entertainment law blog Law Law Land (www.lawlawlandblog.com), where this piece originally appeared.