New class of judicial evidence

The US Court of Appeals in Colorado recently heard an anti-trust case involving a grocery chain selling below-cost petrol as part of a deal. The appeal court held that this did not constitute illegal bundling. In its judgment, it wrote:

Indeed, the plaintiffs’ reading would apparently render unlawful in the State of Colorado a promotional gimmick so common that it features in an episode from Seinfeld:

JERRY: “Atomic Sub”? Why are you eating there?

ELAINE: I got a card, and they stamp it every time I buy a sub. Twentyfour stamps, and I become a Submarine Captain!

JERRY: What does that mean?

ELAINE (embarrassed): Free sub.

Seinfeld: The Strike (NBC television broadcast Dec. 18, 1997). If the first twenty-four sandwiches are sold for $4 apiece at a cost to the maker of $3, the customer who follows through and redeems the offer will have spent $96 to buy $75 worth of sandwiches. But the last one is sold below cost (in fact, it is “free”), making it illegal under the plaintiffs’ version of the UPA.

Well I never. Doesn’t this open up the field on the type of evidence one can bring to a Court? This is going to suit me very well the next time I am an expert witness. All you have to consider is whether a particular legislature intended for an act in a TV program to be legit or not and you are done.

4 thoughts on “New class of judicial evidence”

  1. Hi Joshua I think you are under a misconception as to what constitutes evidence. What the judge is doing here is merely presenting an analogy to prove a point. I think you’ll find a lot of judges quote from quite eclectic sources as part of their judgements. I have come across citations from Alice in Wonderland to the Bible.

    I don’t see any problem in this, after all a Judge’s job can often be quite dry ?


  2. I think Tom S’s comment is a good one – the court is just illustrating its point by a popular example, not using Seinfeld as an expert witness. I’ve also written about use of Alice in Wonderland in judgments (surprisingly widespread!)

    Personally, as a lawyer I LOVE it, as I’ve written at my own blog. Now I just want the Simpsons to make their way into a judgment…


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