Do you have anger towards Pepsi?
I was really angry.
Why did they put out something not true?
Hope for nothing.
I regret it terribly.
Trust with the company is lost.
John had the big media splash initially,
but then the story had died down.
So we had to try to figure out a way to bring renewed attention to it.
You know, what's the new hook?
Michael did what he does. He went digging for more dirt,
trying to find a soft spot that he thought he could capitalize on
and really paint them in a… in a bad light.
He mentioned this campaign they had in the Philippines
that was a complete disaster.
And he ended up uncovering a real bombshell.
In 1992,
Coca-Cola is present in every aspect of Philippines.
-Coke in the morning,
Coke at movies, Coke at every family occasion.
Coca-Cola had 75% market share.
Pepsi's market share was relatively small.
I think there was really a need to boost their marketing,
so "Pepsi Number Fever" was born.
-W-W-W-Wait a second!
As-As-As I was saying, here's something new from Pepsi!
Buy any Pepsi product, look under their caps or crowns,
you can win, win, win!
You collect bottle caps, and if you get three numbers,
you'll win this big amount of money.
You can win 100 pesos,
500 pesos,
but the main prize was one million pesos.
That amount could change your life
if you're lucky enough to get it.
My name is Emmanuel Dapidran Pacquiao.
My ring name is "Manny Pacquiao."
A sensational cross from Manny Pacquiao.
I'm a Senator of the Republic of the Philippines.
Because of the suffering of our people,
when promotions like this happen, the people will try very hard.
If poor people win, it's of course a big deal.
The winning number is…
Who knows, you could be a millionaire!
You could be a millionaire!
You could still be a millionaire!
How much Pepsi did you buy at the time?
Every day, I drink sometimes five, six.
-How many times in one day? -Three times in one day.
I would buy three bottles a day.
My friends and I would go to the garbage dump
and try to find bottle caps like that.
People started buying a lot of Pepsi.
They prioritized it instead of buying bread.
There was a big change in the sales.
In a few months, it was already eating up on the dominance of Coca-Cola.
Did you really think you had a chance of winning?
Yes, because that's what they advertised.
You could be a millionaire.
Then one day, we were watching TV…
Our number, 349, was chosen.
I recognized that my bottle cap had won. I was happy.
Extremely happy.
I won one million!
I was happy, full of joy!
Everybody's like, "This is fantastic. I just won a million pesos!"
I was looking at that number again and again.
Then I saw that I had two of them.
I had two of them.
We heard that there were multiple winners at the time.
I said like, "How could that be?
"That's just gossip. That's just nonsense."
So I said, "Let's go to Pepsi."
There's untold numbers of individuals with this number.
And so you've got thousands of people who have basically won the lottery.
They said "We're not going to make good on our promise
because of this computer error," and people went crazy.
It was all over the country.
We then realized that this is no ordinary marketing fiasco.
They all rushed to the Pepsi sales offices
demanding that Pepsi honors the promise.
People were so mad.
They would start to throw rocks at outgoing Pepsi trucks.
They were throwing stones at the salesmen.
A Molotov cocktail was detonated.
Meant for a Pepsi truck.
And that resulted in the death of a
teacher who was walking by.
If there was no 349, my mom wouldn't have died.
We could've been at peace at this time.
She could've seen her grandchildren.
Michael mentioned this devastating thing
that happened in the Philippines
where people lost a whole lot more than I could ever imagine
over a contest.
Next thing you know, their plant is attacked.
There was an incident where a Pepsi plant was bombed,
which resulted in the death of three employees.
That swayed public opinion,
and Pepsi was able to avoid this public relations disaster.
Lo and behold, an investigation ensues,
the government of the Philippines gets involved,
and they conclude that Pepsi had bombed their own trucks
and attacked basically their own facility, had staged the whole thing,
in an effort to sway public opinion
and get out in front of this thing.
That was what was being put forward by Michael.
And that's pretty… pretty vicious.
But again, at this point, I was pretty, like, on the ropes.
I came to the conclusion
that Pepsi had a history of making a lot of promises,
but also of avoiding having to deliver.
They liked the quid, but they didn't like the quo.
They'd sell the shit out of Pepsi.
That's great for Wall Street, that's great for the fat cats in the C-suites.
Then when it came time to actually pay the piper,
it was a completely different ballgame.
"Oh, it was a computer error." "The Harrier Jet isn't real."
And so the idea I came up with was,
we're gonna create an ad campaign
that's gonna go after Pepsi, we're gonna punch 'em right in the mouth,
and try to sway public opinion
towards John Leonard.
So I called a close friend of mine.
A guy that I grew up with who was in the ad business.
He reached out and told me about this Pepsi story,
and I was just really in shock,
because for BBDO, a major ad agency, to have an oversight
of not putting a disclaimer in an ad of that magnitude
was unbelievable.
So let's come up with something that… This needs to be memorable.
I want it to be a shot.
This isn't a jab. I mean, this is a… this is a big right hand.
I developed these 23 years ago and then I saved them,
'cause I knew this moment was gonna come.
We thought it was pretty ballsy to have a photo
with a Pepsi logo as a black eye, we thought it was arresting,
and we wanted it to be symbolic
and also create interest in the story.
I thought it was super clever. It had wording with it.
-"Pepsi. Deceiving a generation." -I was like, "That's good."
I think everybody was like, "Yeah, that's great." That's creative, right?
It's about this battle.
And this was the entirety of the second ad,
with this copy at the bottom, and it reads,
"Hey, Pepsi, look down here."
"This is the space that's reserved for legal verbiage."
"You know, the kind of stuff that keeps you from getting yourself in trouble
because it negates any ambiguous or otherwise misleading promises
that may appear in your ad."
"Pretty cool safety measure, huh?"
"Yeah, but unfortunately, your Pepsi Points television commercial
didn't have any such disclaimers."
"So viewers such as John Leonard were left to think
the offer was as genuine as the T-shirts and sunglasses."
So then, if that had not done the trick,
we were gonna break out the heavy artillery.
This ad tells the story about what had happened down in the Philippines.
"In 1992,
Pepsi's Number Fever promotion led to a huge headache for the soft drink giant."
"Pepsi angered the winners by offering only 500 pesos… 20 dollars."
"That almost sounds like
two cases of free Pepsi."
It was brilliant. You know, I guess if I was Trump, I'd say it was beautiful.
There's never been a more beautiful Molotov cocktail ever.
The temperature was getting turned up, and for me,
I liked it.
I was like, the first one I thought was clever.
It seemed like a jab.
The next one seemed like a body shot,
and then the Molotov cocktail seemed like a knockout punch to me.
We found some papers willing to run the ads.
Including USA Today.
Also, we have a billboard reserved
across the street from Pepsi's headquarters,
because I wanted the Pepsi executives, for at least a month,
every day they came into the office and left the office to see this billboard.
I wanted to punch 'em right in their nose, constantly reminded of this thing.
But then we got to numbers, cost projections, and they weren't small.
What are we talking?
A couple hundred K, as I remember.
So then the idea was that we were gonna have Hoffman fund it.
He's got the $700,000 back, 'cause Pepsi sent the money back to him.
So presumably he has that money to spend on this effort,
and we've been staying two to a room for some time now,
so he's been saving money in that regard.
I remember sitting down with him and him giving me the pitch,
and he has a couple of these storyboards up there.
And they were really negative,
incriminating.
It didn't sit well with me.
But John loved it.
John loved it, John loved it.
"Come on, Todd. Let's do it. Let's do it, Todd!"
To me, I was very swayed.
I did feel kind of this sense of desperation.
It felt like things were not going in the direction they needed to go.
Todd saw liability
to take an issue with some of these things that had happened in Pepsi's past
and put a big spotlight on 'em.
It felt like we put this before Pepsi
and said, "Look, if we don't make a settlement with you,
we're running these ads all over the United States,"
look up blackmail, and I would say it fits that category.
Hoffman at one point asked me,
"What do you think the likelihood is that Pepsi's gonna sue John over this?"
And I said, "100%."
I remember Hoffman saying,
"How can you possibly advise that we should run this ad campaign?"
And I said, "Because, Todd, it's gonna all come out in the wash."
"Pepsi will not succeed in the case, most likely."
"It'll all be settled in the end."
"Either John's gonna get a Harrier Jet,
or there's gonna be money that's gonna be paid to John Leonard."
I'd been around the track a time or two.
And I didn't like what was being pitched.
A lot of the things that he wanted us to do
bore a very strong resemblance to things that he did
that he's going to federal prison for right now.
Pepsi's the one saying something false, and now we're gonna do something
that's just as bad and jump into the cesspool with them?
No. I'm not going to prison over a damn Harrier Jet.
And you aren't either, John.
Todd, did not see this get-down-in-the-mud,
throw-hand-grenades, throw-Molotov-cocktails route to success.
In the eleventh hour, Todd Hoffman pulled the plug.
I told Todd, I said, "Listen, you're on the verge of fucking this up."
"Step aside."
"I've got people that will come in,
we're gonna buy you out of your position,
and we are going to proceed."
Todd and I had been friends for quite some time,
but throughout the course of this case, Michael and I struck up this friendship.
We were like-minded in many ways.
John told me that he wanted Hoffman out of the deal at that point,
'cause John believed there wasn't gonna be anything left
unless my strategy was followed.
I told John I don't want to be a jack-up artist. That's not the idea.
That's where I'm going with this. You want me out? I'll get out tomorrow,
but I'm not going in those directions.
Todd wanted to maintain control,
and if that meant that the plane flew into the side of the mountain, so be it.
He was just being absolutely impossible to deal with.
It was typical Todd Hoffman.
I would say Michael's wearing an ankle bracelet, and I'm not.
I'm a free man, and I go to sleep at night
and I don't have to worry about anybody coming after me
or 36 federal indictments,
facing years in prison,
or any of that shit.
I'm living out here in God's country.
I had to make a very strategic decision on which direction to go.
And though I thought this thing could be won with Michael…
I chose Todd.
-How's everything feel? -Everything feels good, John.
Let me know if your backpack's heavy or something.
Okay, bud. My backpack's heavy.
I'm letting you know!
-Talking like a big shot. -Not a good sign for the home team.
Get back, honky cat.
Todd was in it from the get-go.
At 20 years old, he gave me the time of day.
Oh, he does it again!
Todd really invested in this idea, and he invested in me.
And, you know, the book that I'm writing this down in right now,
this book, it's called David and Goliath.
See, in this case, he has to be David again.
He's trying to fight the giant.
-I'm the giant!
The great thing about life is adventures.
And adventures with people you're close with.
Now we entered into the next phase of this,
where we were hoping to get in front of a jury in New York.
We were going up against some of the larger firms in the country.
And it wasn't just Pepsi's, it was their advertising agency's firm,
and insurance companies' firms.
We were outgunned.
I was the negotiator.
I was the putting the gel together,
but I'd never have been the litigation lawyer.
That's not my field! I knew that.
We needed to bring on somebody that had the wherewithal to go toe-to-toe
with the same type of people that were on the other side of this.
We called five or six of the biggest attorneys in New York City.
And every one of them knew about the case.
I was taking… You know… I don't know. Like I was pimping John.
I prefer this.
Wow, how about that?
Well, Pepsi, congratulations.
David Nachman, very successful complex litigation attorney.
You can't play with something and get people to respond emotionally
if you're not prepared to deliver.
Recently, I took on the manufacturers and distributors of opioid products.
Holding Pepsi to account really gripped me,
and that motivated me and my team to pursue this.
After Pepsi had filed their lawsuit against me,
it was assigned to the docket of Kimba Wood.
I kept tabs on what was going on as far as the legal maneuvering,
but not in a stalkerish kind of way.
Like a… I wasn't like a boyfriend or girlfriend who'd been broken up with.
I found out that it was gonna be before Judge Kimba Wood,
Federal District Court Judge in the southern district of New York.
Judge Wood had actually at one point been floated
for a potential Supreme Court position.
President Clinton was planning to nominate her to be Attorney General
only to scuttle that plan when it was revealed
she had hired an illegal alien to care for her son.
They called it Nannygate.
She had recently earned the moniker The Love Judge.
She has been named as the other woman in a divorce proceeding
brought by socialite Nancy Richardson.
It was a nice little scandal
that probably makes you
a bit humorless, let's say.
She was represented to me as being a corporate judge.
You know, that she favored corporations.
She definitely came out,
I would say, on big business's side.
She's a very smart woman, she's a very good judge,
but for that case, she was a terrible pick for them.
Our whole goal at this point was to get in front of a jury.
Pepsi's whole goal was to not let us get in front of a jury.
When it comes to the basic question
of what's a reasonable reaction to the commercial,
we thought it was a question for ordinary people to decide.
He should get the jet.
Well, if he drank that much Pepsi, then he probably should.
Homemakers and professionals and students and everybody in between.
Maybe he is goofy, but they are making those claims.
And you would've had something that reflects society better
than a highly educated, somewhat ivory tower figure
sitting high up on a bench.
Big corporations like Pepsi are scared to death of common men and women
passing judgment on their conduct.
It scares the shit out of them.
But Pepsi successfully convinced Judge Wood
to grant summary judgment.
A mechanism to decide a case before it even gets to a jury.
It was a total bummer moment, because whatever a jury of my peers concluded
would have been fair.
But nonetheless,
I had no doubt
that if a judge was able to see what we could find out through depositions,
that the truth would come out.
Depositions are a process whereby someone is placed under oath
and they have to answer questions about what transpired.
We wanted to take depositions of the BBDO folks
who engineered, or developed, this promotional campaign.
Being able to take a deposition
could require Pepsi and BBDO executives to answer questions like,
"Why is it that the Canadian spot had 'just kidding,'
but the American spot did not?"
"Why is it that the point total was ultimately raised
from seven million Pepsi Points?"
"Why is it that you didn't make it clear that it was a joke?"
"Isn't it true that you really wanted people to believe
and in particular, adolescent girls and boys to believe,
that the jet was attainable?"
So, for the past 25 years,
no one has ever really revealed
how the claim got put in at seven million Pepsi Points.
I haven't spoken about this in 25 years.
I don't think people involved in the lawsuits know this.
I know they don't.
The art director Don Schneider and myself have actually taken a lot of flak.
Particularly now, on the internet.
You go on YouTube, you put in "Harrier Jet Pepsi,"
people, "Ah, the idiots, they this…" And, "Didn't the creative team…"
"Okay, they wrote a funny commercial,
but they got their client in trouble doing this," and…
I just kind of want to set the record straight after 20 years,
and say, "Hey, it wasn't the creative team that screwed this up."
Let me say this.
This was the first board that we would present to the client.
Had this run,
with 700 million Pepsi Points,
we wouldn't be sitting here today.
When we brought Pepsi to the editorial house
to show them the rough cut,
it ended with the original offer.
700 million.
And at the end they said, "Can we see it again?"
Which wasn't unusual, and we ran it again.
And then one of the clients said,
"The 700 million Pepsi Points,"
he said, "I find that hard to read."
We said, "What do you mean?"
At some point, I do remember there was a discussion in the editing room
about, "Hey, is it too long?"
Because the longer the number, the smaller the number. It needs to fit in the frame.
There were so many points scrolled across.
Somebody said,
"That looks a little busy."
I don't recall it.
I'm… I'm… I'm pretty sure I didn't do that.
I'm pretty sure nobody on my team…
I dunno how it happened, but it did, you know.
So we had the editor take out one of the zeros
and make it 70 million.
And he said, "I still think that's hard to read."
And we said, "Okay."
He says, "Take out another zero." So we make it seven million.
And we run that, and he goes, "I can read that."
"We should go with the seven million points."
"What do you think?"
And the people with him, they all agreed.
I think they should have known better. It was their promotion.
It went through their legal system.
And there's words in here that were written by lawyers
to make sure everything was kosher, and straight-up.
It was… It was just an aesthetic… It was an aesthetic, uh, uh, uh, thing.
I gave it a minor pushback.
"You don't have to read that it's exactly 700 million."
"You just have to see there's a seven with a lot of zeros behind it
to know that it is impossible and funny."
And I got the pushback that, "I want it to be readable
'cause I don't want them wondering what this thing is gonna cost."
So that's why I gave up. I said, "All right, it's not as funny."
It's just like the kid wasn't as funny.
And it led to disaster.
Nobody thought about the ten-cents-a-point thing
because it was unanimously understood and accepted
that this was a gag.
We did not take this very seriously.
From our view, it was in the spirit of everything else that we did.
It was just part of our sense of humor.
And so
we expected the public to act that way.
They thought they had a number that was readable.
I didn't hear anything,
and then one day,
Jeff Mordos, The Wolf, comes to my door and he says to me, "Mick,
just wanna let you know that you're probably gonna be subpoenaed."
"Lawyers wanna talk to you and get your view on things."
So I said to Jeff, I said, "Jeff, I don't know what you do."
"You don't want me testifying. I can't be put under oath."
I would have been the worst witness they could have called for Pepsi.
'Cause if you go, "Hey, listen, the commercial I presented
had this ending, and it was changed by the client to this ending,
and that made this whole thing happen," it would have been terrible.
Well, there's the case!
They wanted to make it credible, and therefore it was credible.
"Well, we… We, Pepsi, really tried to make it credible."
"We advertised it for seven million points,
so it would be credible."
And Jeff looked at me, he just looked at me, and he said,
"Okay, Mick."
And he left.
They did not want us to have depositions, under oath,
of the people who designed, developed, and executed this campaign.
We argued to the judge
that additional discovery should be had.
She wasn't persuaded because she said, look, in her view,
she had all of the relevant facts already.
The advertisement itself and the catalog,
the correspondence between John Leonard and Pepsi.
As far as she was concerned,
that's all that was relevant to determining whether a reasonable person
could have taken this as an offer.
No, I was not deposed, was not called,
was not inquired upon in any way regarding the case.
Which… It's little surprising.
Looking back on it, to this day, I still don't know why
we weren't able to penetrate and get folks deposed.
There was seemingly a long list of people
that it would have been great to hear what actually happened.
A big corporation knows how to game the system very well,
and they have the power and they have the political pull,
whereas somebody like John or myself…
Not that I…
I mean, I'm a little guy.
John's a little guy. We don't have those kind of connections.
We're years into it.
Things are dragging on.
Briefings back and forth.
It didn't seem like the legal process was going anywhere.
Those early thrills of
things happening, the excitement,
it was gone.
You know, as this protracted battle was going on,
Todd and I continued climbing together.
We go to climb Mount Everest.
I remember specifically being at base camp.
Conversations going back and forth with David Nachman on a satellite phone.
Shortly thereafter, getting the final word.
Can I…
Let me see here.
Ah, Judge Wood's decision.
It's… It's a rather lengthy opinion for a straightforward contracts case.
There's no question in my mind,
Judge Wood thought she might have been writing for the law books.
To me, the written opinion,
there's some unbelievable comedy in there.
You can't believe… It's funnier than the commercial.
Here she is in the unusual position of trying to explain humor.
"Humor can be dissected as a frog can, but the thing dies in the process."
She says, um, no school would make parking space for a student's fighter jet.
She criticizes, um, the commercial for not having the pilot wear a helmet.
And we get, uh, you know, essentially a death notification on the Pepsi case.
She determines that the case didn't have merit.
That the offer that was made
would not have been seen by a reasonable person as a legitimate offer.
The big thing that they hung their hat on
was that no reasonable person could find this ad credible.
Who are they advertising to?
From a long-tenured, federal judge's perspective,
it may not have seemed like a legitimate offer.
But I can tell ya,
millions of my peers saw the commercial and thought it was an offer.
You're advertising to a specific group.
You should be asking that group, "Is this credible?"
I think you'd find a majority of those people
would find that credible.
I think it was a corporate decision from a corporate judge, I'm sorry to say.
Onward and upward.
Well, we're gonna give the top a try.
Crunchin' along.
He saw an opening, took a clever shot,
trying to either get us to settle or win a court case.
And, you know, they were unsuccessful in both.
But, you know, hats off to him.
I am really proud of him for doing that, and somebody should have.
I mean, it was an offer, and he should have got the jet.
By this time I was feeling like, "God dang,
maybe I should have taken that early settlement," right?
I was tired.
It was time to turn the page.
But I kept getting calls.
And instead of calls from television stations,
I started getting calls from law schools.
A law professor called me up years later,
and wanted to talk to me about the case.
And I said, "How do you even know about this case, or find me?" And so on.
He said, "Oh, no, no, no, it's in the law books."
"It's in the casebook." I said, "Oh, really?"
I had no idea.
Fast forward, my own son is in law school years later,
the phone rings, and he says, "Hey, Dad, you know anything about a Harrier Jet?"
And I was like, "What? Yeah."
Like, "Why?"
And he said, "Well,
it's a critical case in understanding the boundaries for contract law."
We heard from all kinds of people debating it in classrooms.
Most people thought we should have gotten the Harrier Jet.
Just add a couple of zeros.
It has no impact really on the structure or nature of the ad.
Just make the price prohibitive.
One night we're watching Jeopardy!, and I come on
as a freaking Jeopardy! question.
When this soda company jokingly offered a Harriet Jet,
John Leonard tried to claim it.
-Michael. -What is Pepsi?
For the health of my career, my client, my agency,
I wanted to dislike John Leonard.
On the other hand, if I was 20 years old, and I could figure this thing out,
I would have been damn excited.
I kind of view him as a kid with a quarter at the carnival
who wants to beat the carnival games.
And you kinda gotta root for that.
Even, in retrospect, I do, because
it's Mark Twain, it's like Americana.
Whoo!
Top of the bottom!
-Oh, man. -What a dream!
-Awesome stuff. -A dream come true.
Oh my God.
What a dream come true.
What a day.
It's interesting looking backwards on things.
Especially things that didn't turn out the way you hoped.
All right, here it goes!
-Whoo! -Yeah!
Oh!
Irrespective of whether the plane got delivered, didn't get delivered,
this did change things.
And it changed 'em for the better, and I'm proud of that.
And it's because of two people that got together,
John and myself, who forged a friendship on a mountain.
A lasting friendship,
with further adventures to come.
Well, thank you, Pepsi,
for running misleading and false advertising.
We never would've been here without you. Whoo!