Dorothy Carlson v. The Coca-Cola Company, a Delaware Corporation, and Glendenning Companies, Inc., a Connecticut Corporation

483 F.2d 279 1973-2 Trade Cases 74,640 Dorothy CARLSON et al., Appellants, v. The COCA-COLA COMPANY, a Delaware corporation, and Glendenning Companies, Inc., a Connecticut corporation, Appellees. No. 26842. United States Court of Appeals, Ninth Circuit. July 31, 1973. As Amended Aug. 20, 1973. John E. Hill (argued), Melvin M. Belli, Robert L. Lieff of Belli, Ashe, Ellison, Choulos & Lieff, San Francisco, Cal., for appellants. John N. Hauser (argued), Charles F. Preuss (argued), James L. Hunt, Robert L. Maines of McCutchen, Doyle, Brown & Enersen, San Francisco, Cal., for appellees.OPINION Before ELY and HUFSTEDLER, Circuit Judges, and SOLOMON, District Judge. * ELY, Circuit Judge: 1 Acting individually and, purportedly as class representatives, appellants initiated this action against The Coca-Cola Company for damages. The complaint alleged that Coca-Cola had engaged in a nationwide promotional game, Big Name Bingo, that was deceptively structured to deprive many participants of prize money to which they were allegedly entitled under the rules of the game. Under Federal Rule of Civil Procedure 12, the District Court, 318 F.Supp. 785 , dismissed the complaint for failing to…

*280 OPINION

Before ELY and HUFSTEDLER, Circuit Judges, and SOLOMON, District Judge. *

Acting individually and, purportedly as class representatives, appellants initiated this action against The Coca-Cola Company for damages. The complaint alleged that Coca-Cola had engaged in a nationwide promotional game, Big Name Bingo, that was deceptively structured to deprive many participants of prize money to which they were allegedly entitled under the rules of the game. Under Federal Rule of Civil Procedure 12, the District Court, 318 F.Supp. 785 , dismissed the complaint for failing to establish a requisite basis for federal jurisdiction. We affirm.

Appellants sought to ground general federal jurisdiction upon 28 U.S.C. § 1337 , which provides:

The specific Act of Congress under which this action was alleged to have arisen is section 5(a)(1) of the Federal Trade Commission Act, 15 U.S.C. § 45 (a)(1):

Here, the pivotal question is thus whether private litigants may invoke the jurisdiction of federal district courts solely by. alleging that defendants engaged in business practices proscribed by section 5(a)(1). Whether the District Court had jurisdiction depends upwhether this action…

(dissenting):

The Coca-Cola Company conducted a national sales-promotion contest, Big Name Bingo, in which each contestant received a game card with ten questions. The answers were printed on the inside of soft drink cartons and bottle caps. Coca-Cola promised each winner $100. The Official Rules said that one answer might be correct for more than one question and that for some of the questions none of the answers provided were correct. The Rules did not mention that any question had or required more than one correct answer.

Appellants submitted entries with one correct answer to each' question. At the end of the contest, Coca-Cola announced that some questions required more than one correct answer and Coca-Cola refused to pay appellants the $100 prizes. Appellants allege that about 1,500,000 people entered the contest and that almost all of them gave one, and only one, correct answer to each question.

Appellants filed this class action under 28 U.S.C. § 1337 against Coca-Cola and Glendenning Companies, Inc., its advertising agency. Appellants assert that Big Name Bingo was unfair and deceptive and that respondents violated Section 5 of the Federal Trade Act, 15 U.S.C. § 45…