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Miller v. American Family Publishing, 284 N.J. Super 67, 76 (App. Div. 1995)

In Miller v. American Family Publishing, 284 N.J. Super 67, 76 (App. Div. 1995), the Court held that the plaintiffs establish a prima facie case and the defendant’s Motion for Summary Judgment should be denied. In Miller, the plaintiffs contended that the defendant’s advertising materials were deceptive and violated the New Jersey Consumer Fraud Act in three respects. First, plaintiff said that the defendants deliberately planted the impression that the chances of winning in its sweepstakes were enhanced by ordering a magazine subscription. Second, plaintiffs claimed that those who responded to defendant's earlier mailings were, thereafter, urged to submit further responses from misrepresentations that they had survived a “winnowing down” process which had placed them in a select group of finalists and had increased their chances of winning. Thirdly, plaintiffs pointed to defendant’s “alert” to sweepstakes participants who had not ordered the magazines, implying that a continued failure to subscribe would lead to their being dropped from the contest. The Court held as follows:

“ . . . here the entire tenor of the defendant’s promotional literature has the capacity to mislead. It misleads by strongly implying that purchase of a magazine subscription will enhance one’s chances of winning the sweepstakes. It misleads by saying (not just implying) that the contestant to whom the mailing is addressed has survived some earlier thinning-out process and now has an enhanced likelihood of success in the sweepstakes. And, it misleads by indicating that if the reader does not buy a subscription, he or she will be dropped from any opportunity to win the sweepstakes.” Id. at 83.

The Court held specifically that the defendant’s disclaimers, nor the literal truth of the solicitations, constituted a defense to any of the plaintiffs’ claims. Id. at 84.