This Week’s Other Sports/Game Rules and Officiating Scandal

by Greenberg Glusker Fields Claman & Machtinger LLP
Contact

So here’s a trivia question for you:  what happens when producers of a game show tell two contestants there will be no trick questions on the show, and then throw something that might be considered a “trick question,” causing those contestants to blow $580,000 in potential winnings?  Do the contestants:

(A)  Quietly retreat to their homes and try never to look at the chain of excoriating comments on the YouTube video of their defeat.

(B)  Launch an inspiring grassroots campaign on the Internet to get a second run on the show.

(C)  Reevaluate their personal choices and embrace new lives of monastic asceticism, untempted by the siren’s call of game show winnings.

(D)  Sue.

If you guessed D, congratulations!  You win…the rest of this article.  So can two contestants who lost it all on TV win it back in the courtroom?

Before we answer that question, you must understand:  I’m a particularly qualified expert to opine on this subject.  Sure, the law degree is nice, but lots of people have those.  I, on the other hand, have particular insight on the question of what happens when you, oh, I don’t know, lose a half-million dollars in winnings (give or take) in the span of about 4 minutes in front of a national network primetime audience.  So I think these plaintiffs can take it from me when I say, Run from this lawsuit.  Run like the wind.

Let’s Meet Our Contestants

According to their complaint, Andrew and Patricia Murray appeared on the very first episode of Fox’s Million Dollar Money Drop, a short-lived game show in which contestants wagered a $1 million bank on a series of trivia questions, and were then forced to watch as piles of cold hard hundred dollar bills literally fell through floor in front of them as they answered questions incorrectly.  It’s a format that perfectly marries America’s intellectual curiosity about trivia and its reality TV-fueled sadistic streak.

It’s also a show with an existing history of minor scandal.  Near the beginning of the show’s run in late 2010, another pair of contestants lost a whopping $800,000 on a question asking what product was sold in stores first:  (a) the Apple Macintosh, (b) the Sony Walkman, or (c) the Post-It Note.  Those contestants answered “Post-It Note,” and lost nearly all of their remaining pot ($800,000 out of $880,000) based on the show’s contention that the Walkman was first sold in 1979, followed by Post-Its in 1980.  It turned out that Post-Its were actually sold in select cities as early as 1977 (although originally under a different name, “Press & Peel”) — meaning the contestants had actually been right(-ish).  Money Drop producers first stood by their answer and refused to acknowledge even an ambiguity.  After public pressure mounted, producers admitted an ambiguity and invited the spurned contestants back…to play from question #1, even though they were only two questions away from home when their Post-It bubble burst.  (Compare and contrast:  when faced with a similar “ambiguous” question scandal, Who Wants to Be a Millionaire invited spurned contestant Ed Toutant back to pick up where he left off…and Ed went on to win $1.86 million.)  When the couple told reporters they were unsure whether they wanted to accept the show’s invitation at all, Money Drop host Kevin Pollak basically told The Hollywood Reporter the contestants were big fat whiners who would have lost all that money on the next question anyhow.  So the Murrays may have found themselves a rather shady and unsympathetic defendant.

Before the show, the Murrays allege, producers presented them with a take-it-or-leave-it release and rules agreement, in which the Murrays preemptively released the producers from liability for every horrible thing they could ever possibly do to the Murrays up to and including defrauding and killing them, and agreed to bring any claims (which they had actually waived and weren’t supposed to bring at all) before a prohibitively-expensive three-judge arbitration panel.  The Murrays also may or may not have sold the producers their first-born child (with a right of first negotiation/last refusal on all subsequent children).  So in other words, it was a pretty standard reality liability waiver.  The Murrays were also provided a document of written rules for the show, which were subject to change by the producers, either verbally or in writing, at any time, including during the taping of the show.  And then the producers (allegedly) promised there would be no trick questions.  Well that must have been a relief.

After a few rounds of play, the Murrays were presented with this question:  “According to the Data Security Firm IMPERVA, what is the most common computer password?”  Their choices:  (1) “Password”; (2) “123456”; and (3) “I Love You.”  The Murrays ultimately wagered all $580,000 they had remaining in their pot on “Password,” because, you know, everyone knows “Password” is the most common password on the Internet, right?  In fact, according to IMPERVA, “Password” is the fourth most common password, behind “123456789” (#3), “12345” (#2), and “123456” (#1).  (Doesn’t really sound to you like a trick question?  More on that below.)  When the correct answer was revealed, the Murrays’ money literally fell through the floor, leaving them with nothing to show for the experience but broken hearts and an inevitable future as a YouTube comment thread punch line.

Now, the Murrays are suing not just for the $580,000 they say they lost to the producers’ nefarious manipulations, but for damages for the humiliation of losing that large a sum on national television.

Please State Your Legal Claim in the Form of a Question

What the Murrays may have lacked in judgment and/or knowledge about popular computer passwords, their lawyer has certainly made up for in creativity.  He has (sensibly) dedicated significant portions of their complaint to explaining why they should be allowed to sue the producers of Million Dollar Money Drop at all, and why they can bring their claim in state court, when the contract they signed pretty much says the opposite.  That’s a subject we’ve covered amply in the past on this blog, and that hurdle could, depending on the judge’s inclinations, be enough to defeat the Murrays’ lawsuit by itself.

But the new legal question raised by the Murrays’ lawsuit essentially boils down to this:  can the producers get away with sticking the Murrays with a trick question when they (allegedly) promised not to?  And for that, their lawyer has gotten creative.  Normally, in a case involving a written contract (which will often expressly disclaim any oral promises not made in the contract itself), a plaintiff is hard-pressed to bring a claim on the basis of what else they were told — wink wink nudge nudge — on the side.

Here, though, the Murrays have asserted claims based on the federal laws that were created in response to the quiz show scandals of the 1950s, which prohibit producers from “engag[ing] in any artifice or scheme for the purpose of prearranging or predetermining in whole or in part the outcome of a purportedly bona fide contest of intellectual knowledge, intellectual skill, or chance.”  The producers, say the Murrays, intentionally duped them and other contestants into playing over-aggressively in order to enhance the drama — and reduce the payouts — from the show.  This, they say, amounts to fraud on the Murrays, and on the viewing public.

Of course, federal quiz show laws were designed to prohibit producers from rigging the outcomes of games outright, by feeding contestants correct answers, making people take falls, or otherwise turning a “game show” into essentially scripted television — not from asking hard or, dare I say it, tricky questions to make contestants stumble.  If producers want to make every contestant on their show a big, dramatic loser by asking tough questions, that’s an issue to be resolved in the Nielsen ratings, not the courtroom.

The Murrays’ lawyer has also turned the producers’ aggressively protective terms and conditions against them, arguing that because the producers reserved the right to change the rules of the game verbally at any time, they, in fact, did change the rules when they promised the Murrays no trick questions.  And then, by including a trick question, they breached the agreement, as amended by their own promise.  Clever girl.

But if the producers’ contract allowed them to change the rules at any time by saying so, and if the producers did change the rules by promising no trick questions, couldn’t the producers have just changed the rules back to “trick questions allowed” at will?

Is “Trick Question” Your Final Answer?

Of course, all of that assumes that the question that stumped the Murrays was actually a trick question, as opposed to just being a hard question.  And to make that case, the Murrays make all kinds of observations that, at least to me, seem entirely irrelevant.  In particular, they note that “IMPERVA can hardly be considered a preeminent, well-known and reliable source to give a definitive answer to the question ‘what is the most common computer password,’” that producers never independently verified IMPERVA’s analysis of most common computer passwords, that IMPERVA never conducted its own research into computer passwords but instead analyzed data from a widely-publicized hacking incident involving a site known as Rockyou.com, and that IMPERA itself never claimed to have definitively determined the computer world’s most popular password.

According to the Murrays, a fair question would have read, “According to a hacking incident involving the inadvertent leak of user passwords on the website Rockyou.com, what is the most common computer password?”  But that sounds less like a fair question and more like an incomprehensible one.

The fact is, the question that knocked the Murrays out was clear and objective on its face:  it asked for a specific piece of information which is potentially disputed, but it asked by reference to a specific source — one that had been widely reported when IMPERVA first released its analysis in 2010.  And to be clear, IMPERVA characterized its report as “identif[ying] the most commonly used passwords.”  That was certainly the takeaway from the report, as it was reported by news sources from the New York Times to Canada’s CBC to CBS News’ SmartPlanet.com, among others.  It would be one thing if producers had asked for the computer world’s most popular password without referencing a source, as sources could disagree on the question.  Because there would either be no correct answer to that question or multiple correct answers, that would be a trick question.  But there is literally only one correct answer to the question, “What did IMPERVA say is the most common computer password?”  And it isn’t “Password.”  That may make the Million Dollar Money Drop question a hard one, but not a trick one.

It would also help if the Murrays could come up with some credible source showing that IMPERVA was wrong about “123456” being the most popular computer password, but as far as I can tell, their position on that boils down to, “C’mon!  Everyone knows ‘Password’ is the most common password!”  (Follow-up question:  what if you consider the case-sensitive “Password” and “password” separately?  Or am I being too tricky?)  Maybe the Murrays would have been happier with a question that read, “What do you think is the most common computer password?”

Thanks for Playing, and Please Enjoy These Lovely Parting Gifts

At the end of the day, it’s hard to say who’s the bigger rube.  Is it the Murrays, who are seeking damages for the humiliation of losing $580,000 on national television, while subjecting themselves to further humiliation by reminding the world about how they lost $580,000 on national television (and more humiliation still when they likely lose their high-profile $580,000 lawsuit)?  Or is it their lawyer, who submitted a publicly-filed complaint that disclosed his client’s full name, address, phone number, and social security number to the world?

Maybe the Murrays should be less worried about the $580,000 they lost on Million Dollar Money Drop and more worried about the $580,000 they might soon lose in an incredibly-easy-to-execute identity theft scam.  In the meantime, though, they should probably forget about the legal briefs and lost opportunities and just lay back, enjoy the inevitable YouTube memes, and try to make the money back on the next big game show phenomenon.  Just read the question closely, folks.

This piece also appeared on The Hollywood Reporter, Esq. under the title “Game Show Trickery Lawsuit:  Do the Contestants Have a Case?

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Greenberg Glusker Fields Claman & Machtinger LLP | Attorney Advertising

Written by:

Greenberg Glusker Fields Claman & Machtinger LLP
Contact
more
less

Greenberg Glusker Fields Claman & Machtinger LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.
Feedback? Tell us what you think of the new jdsupra.com!