9:16am PT by Eriq Gardner
Can Reese Witherspoon Beat Lawsuit Over Awkward COVID-19 Lottery?
The legal community will soon owe a debt to Reese Witherspoon. Henceforth, anytime that anyone ever questions the need to involve a lawyer in an act of corporate charity, there will be potential for a knowing nod, a smirk and a whisper: "A million dresses."
On Friday, the Oscar-winning actress filed court papers explaining how she didn't really offer an unlimited amount of dresses to school teachers nationwide as appreciation for their hard work educating children during a pandemic. According to Witherspoon's attorneys, what these teachers got was merely the opportunity of a small chance at a free dress. Those suing, it's added, fail to grasp the full flavor of an Instagram post introducing the offer. In short, they say, Witherspoon's COVID-19 promotion was as advertised.
Here's what Draper James, Witherspoon's fashion label, posted on social media April 2:
"Dear Teachers: We want to say thank you. During quarantine, we see you working harder than ever to educate our children. To show our gratitude., Draper James would like to give teachers a free dress. To apply, complete the form at the link in bio before this Sunday, April 5th, 11:59 PM ET. (Offer valid while supplies last - winners will be notified on Tuesday, April 7th.)"
This promotion quickly became a hit. That morning, The Today Show and Good Morning America both carried segments about Witherspoon's gesture of free dresses to teachers. She was being mentioned alongside other celebrities making multimillion-dollar acts of charity and quoted as saying, "Advocating for the children of the world is no easy task, so I wanted to show teachers a little extra love right now."
But after nearly a million teachers applied for free dresses, it was revealed that Witherspoon had only 250 to spare. And so, a putative class action followed. The complaint alleges Witherspoon and Draper James breached contract and violated California's consumer law through misstatements and omissions. According to this suit, those teachers applying for dresses were duped into providing their sensitive and personal information, including their employment IDs.
So how do Witherspoon's attorneys at Gibson Dunn attempt to get her out of this situation?
Unlike most sweepstakes and lotteries, where participants are often directed to read a typically lengthy set of rules on some webpage, the defense lawyers don't have a lot to work with here. Nevertheless, these sophisticated attorneys can lean upon a few cautionary words from that Instagram post.
"No reasonable respondent would share Plaintiffs’ belief that a boutique clothing line would be awarding a limitless supply of free dresses," states a motion to dismiss (read here). "And the words 'apply,' 'winners,' and the phrase 'offer valid while supplies last' made clear that entrants had an opportunity to receive a free dress—an opportunity that they received."
In the complaint, the suing teachers have a difference stance. They maintain that anyone reading the Instagram post at issue wasn't on notice that this was a lottery, and that while the parenthetical did mention "while supplies last," there was no specific limitation on quantity stated. Witherspoon is faulted for the lack of disclosure, and the suing teachers say that it is highly unlikely that national shows like The Today Show and Good Morning America would have covered Witherspoon's gesture if everyone had known that the nation's educators were being offered such a "pittance" during hard times. (It's estimated that 250 dresses cost Witherspoon's company $12,500.)
Witherspoon's side retorts that the law doesn't require one to be precise as to the exact number of goods available.
"It is telling that Plaintiffs never claim to have believed that there was no limitation on quantity whatsoever, or that they thought that a free dress would be delivered to them if they signed up for the promotion," adds Witherspoon's motion. "Any such assertion would be completely implausible in any event."
In fact, the actress disputes contract formation, which goes to plaintiffs' standing, because the suing teachers haven't expressly indicated they signed up for the giveaway "based on an expectation that they would be guaranteed a free dress by doing so."
(Think about that.)
As for the outrageous expectation of free dresses, Witherspoon's lawyers nod to a 1995 case involving a "Million Dollar Dream Sweepstakes" promotion.
There, a disappointed man sued after being told in large type, "If you return the grand prize winning number, we'll officially announce that MICHAEL FREEMAN HAS WON $1,666,675.00 AND PAYMENT IS SCHEDULED TO BEGIN," and being told in smaller print that the "selection of the winner" would take place on a later date.
Witherspoon's papers say, "If the broad announcement that an individual 'has won' over a million dollars and 'payment is scheduled to begin' was not enough to guarantee a prize in Freeman, then allowing entrants to 'apply' to a 'while supplies last' promotion cannot create a contractual obligation to provide a limitless supply of free dresses here."
If that fails, Witherspoon will fall back on arguing a lack of harm from her awkward promotion.
While the teachers make a fuss about the personal information that they handed over to Witherspoon's company to obtain a free dress (or the opportunity for a chance at a free dress), the defendant responds that personal information isn't lost money or property under California law. As Gibson Dunn attorneys summarize it, those suing "never explain how they could have been harmed by Draper James' good intentions, and its free promotion of a limited number of dresses for hard-working teachers."