Punk’d – Toyota’s Stalker Ad Campaign Lawsuit Continues in California Courts

In 2008, Toyota Motors Sales, U.S.A., Inc. (“ Toyota”) was searching for a strategy to market the Toyota Matrix to men under 35 years old.  Enter Saatchi & Saatchi (“Saatchi”), a worldwide advertising firm with an idea: younger men love to “punk” (i.e., to play pranks on) each other.  This idea led to an elaborate marketing plan where individuals could sign up someone to be “punk’d” . . .

 YourOtherYou is a unique interactive experience enabling consumers to play extravagant pranks. Simply input a little info about a friend (phone, address, etc.) and we’ll then use it, without their knowledge, to freak them out through a series of dynamically personalized phone calls, texts, emails and videos. First, one of five virtual lunatics will contact your friend. They will seem to know them intimately, and tell them that they are driving cross-country to visit. It all goes downhill from there. The Matrix integrates seamlessly into the experience and you can follow the progress of your prank in real-time online. Each piece of the campaign assures that the experience is as Google-proof as possible.

How was the target kept in the dark about the prank?  The target would receive an email from Toyota with a link to a website purporting to be a “Personality Evaluation.”  The target then was required to agree to the “Personality Evaluation Terms and Conditions” in order to proceed.  Those terms included a provision agreeing to arbitration of any disputes.  (More on that later.)

Once the Terms and Conditions were accepted, the target began to receive communications from a “virtual lunatic.”  The following emails, from imaginary soccer hooligan Sebastian Bowler, are purportedly indicative of what the target would receive:   

“[First name of target] mate!  Coming 2 Los Angeles Gonna lay low at your place for a bit.  Till it all blows over.  Bringing Trigger.”   

“I seem to have lost the coppers for now, so I’m all good, mate.”    

“Had a brush with the law last night.  Anyway, hopefully I’ll have lost them by the time I get to your place.”   

Some emails exchanges involved multiple imaginary characters.  For example, the redoubtable Sebastian Bowler might email a target that he “ran into a little problem at the hotel.”  The target would subsequently receive an email from an individual purporting to be a hotel manager, attaching a bill for damage Sebastian Bowler did to his non-existent room. 

Toyota furthered the illusion through the creation of various websites and other materials designed to confirm the existence of these made-up characters.  For Sebastian Bowler, a MySpace page was created, complete with photographs of a pit bull named Trigger.  For a heavy metal character, a band site was created and an actual album recorded.    

A creative director from Saatchi proudly commented to The Magazine of Online Media, Marketing & Advertising that “Even when you get several stages in, its still looking pretty real.”    

Unfortunately for Toyota, for the plaintiff in Duick v. Toyota Motor Sales, U.S.A., Inc., No. B224839, at 3-4 ( Cal. Ct. App. Aug. 31, 2011), it was too real.  On September 28, 2009, Ms. Duick filed a lawsuit against Toyota and Saatchi, alleging intentional infliction of emotional distress, negligence, and false advertising.  Ms. Duick is seeking compensatory damages in excess of $10,000,000.  

Toyota moved to compel arbitration, citing the terms of the “Personality Evaluation” to which Ms. Duick had agreed.  The Court of Appeals was not persuaded, recently affirming the trial court’s holding that the entire agreement was void because of fraud in the inception.     

(At this point, I should note that, for purposes of Toyota’s motion, the court treated all of plaintiff’s allegations as true.  For purposes of this post, I have repeated those allegations here without any idea as to their merit – although the overall description of the marketing program comes directly from a Saatchi website.)    

The court's decision denying Toyota's motion rested on several considerations.  First, the court concluded that the terms and conditions led Ms. Duick to believe that she was participating only in a “personality evaluation,” nothing more.  Second, the court found that the references in the terms to an “interactive experience” or a “digital experience” were too vague for Ms. Duick to understand what would occur.  Finally, while the court acknowledged that the terms advised Ms. Duick that she would receive emails, text messages and phone calls, in the court’s view a reasonable person would not interpret that language to mean that she would receive “frightening or disturbing messages (such as a bill for damages to a motel) that had no apparent or even traceable connection to the terms and conditions.”  Id. at 6.    

So, the case will proceed, and Toyota will have an opportunity to contest Ms. Duick’s allegations on the merits.  

Interestingly, the reasoning of the Duick court does appear to leave open the possibility that an adequately drafted terms might suffice to inform a target that he or she is signing up to be punk’d.  Of course, any such agreement would tend to give away the surprise if the target actually reads it.  This is a trade-off that any company in the future that wishes to engage in this sort of advertising must consider or run the risk of feeling like Toyota undoubtedly does: punk’d.