District Court Flushes Toilet Paper Class Action
We are too litigious. Sometimes people make mistakes. The people on the other side of the mistake are disappointed. There is no law that protects you from disappointment. Sometimes it’s best to shrug and move on. Svetlana from The Sopranos puts its very well.
A case in point: Proctor & Gamble ran a sweepstakes. People voluntarily answered a survey about those grotesque cartoon bears and other things in exchange for the opportunity to be eligible for a monthly prize — “12 monthly deliveries of an 18-pack of Charmin Super Mega toilet paper to the winner’s home.” Plaintiff filled out the survey.
On December 16, 2024, a day that will live in infamy, plaintiff received an e-mail notifying her that she had won! She no doubt spent the next eight hours celebrating in the manner of one who has just won a year’s supply of toilet paper. I don’t know what that looks like, and I am resisting the temptation to imagine it. At the end of those eight hours, plaintiff received the most distressing e-mail in the history of e-mail. Proctor & Gamble notified plaintiff that the first e-mail was a mistake. Instead of a year’s supply of toilet paper, plaintiff would receive a $2 coupon. The next day, Proctor & Gamble upped the offer to two $25 coupons. Not bad.
Plaintiff (or her attorneys) thought it was very bad. She filed a three-count class action complaint, alleging two statutory violations and breach of contract. In a perfect world, I suppose, rolls of super-plush toilet paper would descend from the heavens like pillowy clouds on all class members. Instead, in Pettitt v. Proctor & Gamble Distributing LLC, the District Court for the Northern District of Illinois dismissed the case on the ground that the sweepstakes rules themselves barred class actions.
Plaintiffs attempt to claim that the sweepstakes rules themselves were unconscionable. The Court ruled against them on both prongs. I think the Court’s reasoning on procedural unconscionability, which typifies courts’ reasoning on this subject matter, provides a more suitable source of outrage than a mistaken e-mail. The rules were three pages long in a uniform, “albeit small,” font. The class-action waiver appears at the end of the document in a section labeled “Governing Law.” Citing the Illinois Supreme Court, the Court reminded plaintiff that nonnegotiable arbitration agreements and class-action waivers “presented in fine print in language that the average consumer might not fully understand . . . are a fact of modern life.” They are only a fact of life because courts have allowed them to become so.
As irksome as that treatment of procedural unconscionability is, there is no harm because plaintiff has no plausible claim of substantive unconscionability. Under one of plaintiff’s statutory claims, a successful consumer “shall recover the greater of $500 or twice the amount of the pecuniary loss, reasonable attorney’s fees, and court costs incurred by bringing such action.” While plaintiff cited to the sweepstakes rules’ waiver of attorneys’ fees provision as evidence of the rules’ unconscionability, Proctor & Gamble represented that it would not seek to enforce that term. It follows that plaintiff can get more than adequate relief in an individual arbitration should she succeed on any of her claims. So there is nothing substantively unconscionable about forcing plaintiff to proceed through individual arbitration.
The case was in federal court based on diversity. Without the class claims, plaintiff cannot meet the amount-in-controversy requirement for diversity jurisdiction. The Court thus dismissed the one claim over which it had jurisdiction and refused to exercise supplementary jurisdictions over the others. The case is remanded to the state court.