Imagine one day you receive an email from someone you have never known, never met, never heard of before. They say they can't wait to see you again. They tell you they are on the way to your home and they state your exact address. They let you know they are on the run from the police and need to "lay low" for a few days at your house. This would be strange at best and, most likely, frightening.
You then run a Google search of the name of the guy who sent you the email. Turns out he has a Facebook page with all sorts of pictures and videos and other personal information. You look at everything and cannot find any connection to your life. The more you look the more you beleive this person is real, is a criminal, and is dangerous.
Over the next five days you receive more emails from the stranger. He trashes a hotel room and you receive an email from the hotel manager saying he used you as a reference. There are pictures and even a video of this guy trashing the room. The hotel sends you a bill for your "friend's" damages and asks you to pay. All the while this guy keeps sending you emails stating he can't wait to see you and hopes the law doesn't catch up to him before he makes it to your exact address, which he again reiterates in each email. Five more days of emails. Five more days of increasing terror.
Turns out this was all part of an elaborate marketing campaign by Toyota designed to sell a car known as the Matrix. Before you ask, the person receiving the emails wasn't their target. Rather, Toyota was trying to sell cars to the person who set up the victim. The merry prankster could pick from a number of "maniacs" (Toyota's own words) to virtually "freak out" (again Toyota's own words) the victim through a series of emails, phone calls and videos. And the kicker: Toyota had designed the campaign to be virtually "Google-proof" (a term invented by Toyota for this project) meaning that the more you looked on the internet the more you would be convinced their maniac was an actual person.
As you might imagine, this resulted in a lawsuit against Toyota seeking damages for intentional infliction of emotional distress. This post is not about the merits of this case. Rather, it's about the litigation process and the appeal process and how long things can take to get satisfaction.
Here is what happened: after the lawsuit was filed Toyota brought a motion to compel arbitration saying our client "agreed" to participate in prank. Read the documents and you be the judge. Toyota does not want this case to be decided in front of a jury and that, most of all, is they reason they are pushing so hard to have this case removed from the public court and decided in a private court, i.e. by arbitration.
TLF opposed the motion and we won at the trial level. Toyota filed an appeal. TLF filed their opposition to Toyota's appeal detailing the reasons why we thought the trial court got it exactly right. The Court of Appeal asked us to file supplemental briefs on a particular issue. You can read TLF's supplemental letter brief here. You can read Toyota's supplemental letter brief here.
This lawsuit was filed in March of 2010. The Cout of Appeal just heard oral argument on the appeal this past Friday. The first words spoken at the oral argument was not from Toyota's attorney, as one might suspect. Rather, it was from the one of the justices: "Counsel: can you in any way justify this marketing campaign from your client? Can you in any way explain to me how it is they expected to sell cars from doing these things?"
It is very hard to judge what is going to happen based on what the judges ask or say at oral argument. But I thought it went well. I clerked at the Court of Appeal during the summer going into my third year of law school and I know what the process is. The justices always are very, very informed about all details of the case and usually have a very good idea how they are going to decide each case. But I have never waived oral argument just in case the justices have any questions, which they usually do. When I got up to speak my first words were: "Toyota's actions in this case were fueled by fraud and driven by deceipt." Ok, kinda dramatic, but it's a dramatic case and I thought it made the point, especially in light of the court's inquiries after both sides had briefed everything.
The point of this post beyond all of the interesting facts of this case is this: litigation can take a very long time. Check out TLF's Lawsuit Roadmap to get a feel for the process. You have to be dedicated to your own cause and not give up. This Toyota case has been going on for a year and a half. Either way the Court of Appeal decides means the case is only going to be ready to begin after their decision comes down any time in the next 90 days. Justice can take years, especially when you are taking on a multi-national corporation like Toyota.
TLF will keep you posted on this case from time to time. Google the lawsuit and you will see there are a number of publications who picked up this story. I was even contacted by a Syracuse law professor who put together a PowerPoint presentation of this lawsuit fact pattern to teach to her First Amendment law students. We will see what happens but one thing is sure: Toyota is no longer doing this sort of marketing. This prank, called "Your Other You", was a bust and never should have happened in the first place. So on that score, at least, this case has been a success already.
--Nick Tepper, Esq.