- Jun 11, 2014
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MJMGator;n274003 said:
Gatorsports approves my ad, takes my money, then pulls it
- Thread starter oxrageous
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- Jun 10, 2014
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So is there an update to this saga?
- Jun 10, 2014
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oxrageous;n274207 said:You could always try reading the thread.
- Sep 7, 2014
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I missed the funny ass post too 
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- Jun 19, 2014
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Thank you to everybody who nominated me. That's high praise and I appreciate your trust and confidence. However, I'm in-house counsel to a non-profit; I don't work for a law firm anymore. That means I only work for the non-profit, no outside clients.
Not by way of legal advice but just some general information--
One of the first things to consider is damages. Let's say Ox could demonstrate that 20 new members would have joined immediately and another 10 would have joined eventually. Theoretically you could estimate this by seeing how many new members he got as a percentage of page views while the ad was up and extrapolate forward given the number of page views during the period the ad was supposed to run. Then you just have to guess at the number who may have joined a week later or a month later after having been exposed to the ad. Not an exact science by any means but you have to come up with a number.
Next, how do you put a value on that? Membership is free. It comes down to page views, clicks, posts, etc. (and maybe 1 or 2 new members would pony up the bargain-basement price of $10 to be a supporter). Ox would probably have to do some sort of analysis to determine how much income the average member generates over X period of time. So estimate the number of new members, subtract the ones who actually joined, multiply by the average income generated per member. That number would be Ox' best case scenario for any recovery for damages over a refund of his purchase.
The bigger question is whether he would be entitled to that. I'm guessing there is a contract that limits damages to the purchase price of that ad. Welcome to the "Economic Loss Rule", a concept they spend weeks teaching in Law School and it's still murky. Basically, it means that if your damages are strictly economic (meaning you lost money and did not suffer any broken bones or a wrecked car) you can only make breach of contract claim, you can't make a "tort" which includes things like negligence or strict liability.
However, whatever sales contract Ox signed is likely an adhesion contract. That means there is unequal bargaining power between the two sides, it's a "take it or leave it" contract one side forces the other to sign. Depending on the wording of the contract, such contracts are often interpreted against the drafter (the newspaper) and many onerous provisions are either thrown out or judicially rewritten to be more fair. Contracts are also often deemed to include provisions that aren't actually written down, for example, there is an implied covenant of good faith and fair dealing.
There are also other ways to skin a cat. There might be a cause of action under the "Florida Deceptive and Unfair Trade Practices Act". The Act states that “Unfair methods of competition, unconscionable acts or practices, and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.†Some of these cases are filed directly by the consumer, others by the State AG's Office. This can get very complicated. Economic Loss Rule can be a defense, but just because there is a contract doesn't mean a consumer can't raise FDUTPA. Damages are limited to actual damages (plus fees and costs). You can't get consequential or special damages (the value the new members would have generated). But there is a potential $10K if the newspaper was "willful".
There there is the possibility of filing a complaint with the Better Business Bureau or otherwise shining a light on the newspaper's less than stellar behavior.
That's all I can think of right now.
Alex.
Not by way of legal advice but just some general information--
One of the first things to consider is damages. Let's say Ox could demonstrate that 20 new members would have joined immediately and another 10 would have joined eventually. Theoretically you could estimate this by seeing how many new members he got as a percentage of page views while the ad was up and extrapolate forward given the number of page views during the period the ad was supposed to run. Then you just have to guess at the number who may have joined a week later or a month later after having been exposed to the ad. Not an exact science by any means but you have to come up with a number.
Next, how do you put a value on that? Membership is free. It comes down to page views, clicks, posts, etc. (and maybe 1 or 2 new members would pony up the bargain-basement price of $10 to be a supporter). Ox would probably have to do some sort of analysis to determine how much income the average member generates over X period of time. So estimate the number of new members, subtract the ones who actually joined, multiply by the average income generated per member. That number would be Ox' best case scenario for any recovery for damages over a refund of his purchase.
The bigger question is whether he would be entitled to that. I'm guessing there is a contract that limits damages to the purchase price of that ad. Welcome to the "Economic Loss Rule", a concept they spend weeks teaching in Law School and it's still murky. Basically, it means that if your damages are strictly economic (meaning you lost money and did not suffer any broken bones or a wrecked car) you can only make breach of contract claim, you can't make a "tort" which includes things like negligence or strict liability.
However, whatever sales contract Ox signed is likely an adhesion contract. That means there is unequal bargaining power between the two sides, it's a "take it or leave it" contract one side forces the other to sign. Depending on the wording of the contract, such contracts are often interpreted against the drafter (the newspaper) and many onerous provisions are either thrown out or judicially rewritten to be more fair. Contracts are also often deemed to include provisions that aren't actually written down, for example, there is an implied covenant of good faith and fair dealing.
There are also other ways to skin a cat. There might be a cause of action under the "Florida Deceptive and Unfair Trade Practices Act". The Act states that “Unfair methods of competition, unconscionable acts or practices, and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.†Some of these cases are filed directly by the consumer, others by the State AG's Office. This can get very complicated. Economic Loss Rule can be a defense, but just because there is a contract doesn't mean a consumer can't raise FDUTPA. Damages are limited to actual damages (plus fees and costs). You can't get consequential or special damages (the value the new members would have generated). But there is a potential $10K if the newspaper was "willful".
There there is the possibility of filing a complaint with the Better Business Bureau or otherwise shining a light on the newspaper's less than stellar behavior.
That's all I can think of right now.
Alex.
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MJMGator;n274842 said:
Well, I reckon the question now is whether it is worth the $10 asking price to get to see it in the saloon. Hmm, choices, choices.
I have been thinking about becoming a supporting member. Guess I will pull the proverbial trigger tonight.
- Jun 10, 2014
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I'd say boycott GSMB, but I don't think they'd notice the drop in traffic. 
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