Why Donald Trump is Likely to Lose a Lawsuit Against Bill Maher (Analysis)

Donald Trump Bill Maher Split - H 2013
Getty Images

Donald Trump Bill Maher Split - H 2013

Donald Trump is filing a lawsuit against Bill Maher for failing to live up to an "unconditional offer" made on NBC's Tonight Show to donate $5 million to charity if Trump provided a copy of his birth certificate proving that he’s not “spawn of his mother having sex with orangutan.”

Read the Complaint Here 

We'll chip in $500 to the charity of Trump's choice if he actually prevails in court over Maher and collects $5 million.

"Trump would have to prove that Maher’s words and conduct demonstrated, objectively, that he intended to be bound by his statement, and that he was not merely making a joke," says Dori Ann Hanswirth. "Given the outrageousness of Maher’s statement, the amount of money involved and the fact that his statement was made on a comedy TV show, it seems that Trump has an uphill battle here."

This isn't the first time that something like this has come up.

If Trump is super-lucky, he'll follow in the footsteps of auto repair shop owner Armin Augstein, who took R&B artist Ryan Leslie to court after the musician offered $1 million on Twitter to anybody who returned his missing laptop.

In October, a federal judge in New York ruled that a reasonable person would have understood that Leslie made an offer of a reward. Leslie tried to argue that his statements had some nuance -- that he really wanted the property on the laptop, not the ruined hardware -- but a judge threw the case to jury, which ordered Leslie to pay up.

Then again, if Trump goes forward with his lawsuit, he will more likely be in for nothing but a big legal bill in his attempt to enforce a unilateral contract.

For example, see the case of the $1 million Dateline challenge.

In 2006, Orlando-based defense attorney James Mason went on the NBC news show and said it was impossible for his client to have committed the murders his client was accused of perpetrating since it would have required a flight from Orlando to Atlanta, one of the busiest airports in the world, and then a five-mile drive to a hotel where the murders happened -- all in less than a half-hour.

"I challenge anybody to show me, I'll pay them a million dollars if they can do it," said Mason on the show.

Dustin Kolodziej, an enterprising law student, provided proof in the form of a video recording that showed the sub-30 minute trip was indeed possible.

Unfortunately, nearly seven years later, Kolodziej is still in court attempting to collect!

But perhaps the case that might most demonstrate why Trump is likely to lose is the case of the Pepsi Points.

In 1999, John Leonard sued PepsiCo., attempting to get the company to hand over an AV-8 Harrier II jump jet. The advertised "offer" came in the form of a television commercial that showed the big prize for 7 million Pepsi points. Leonard had 15 points and attempted to send Pepsi a certified check for $700,000 -- 10 cents a point, per contest rules -- to cover the rest.

Pepsi successfully argued that its advertisement was intended to be humorous.

"Plaintiff's insistence that the commercial appears to be a serious offer requires the Court to explain why the commercial is funny," wrote a judge. "Explaining why a joke is funny is a daunting task; as the essayist E.B. White has remarked, 'Humor can be dissected, as a frog can, but the thing dies in the process.' "

Ultimately, Leonard was deemed to be a loser.

As the judge wrote: "A reasonable viewer would understand such advertisements as mere puffery, not as statements of fact. … The Court rejects plaintiff's argument that the commercial was not clearly in jest."

And so, now we have the case of the Trumpian orangutan.

Maher is a comedian. His "offer" might have been pointed, but what judge is going to agree that there's an objective basis for saying it was understood to be more than a joke? Especially when Maher presents evidence of the studio audience laughing.

If we're wrong, we'll write a $500 check to Trump's charity. And this time, Trump won't have any problem collecting. We promise.

Email: eriq.gardner@thr.com; Twitter: @eriqgardner