image: CNET

image: CNET

The past month or so has been filled with a number of large-scale marketing fails. There was Kendall Jenner’s Pepsi commercial, Nivea’s “white is purity” ad campaign, the now-infamous Fyre Festival, and most recently, Sunny Co Clothing’s Instagram campaign. While you may not be familiar with the Sunny Co story, you have almost certainly seen the image at issue – one in which a brunette poses pool-side in a red swimsuit; it has been all over Instagram this week, after all.

The backstory is as follows: On Tuesday, California-based company Sunny Co Clothing, which was founded by University of Arizona seniors Alan Alchalel (a marketing major) and Brady Silverwood (who is studying finance) prompted Instagram users to repost the photo – which has now disappeared from its Instagram page but which originally noted the campaign was sponsored by @twazerapp, “the 24/7 college marketplace that helps students make & save money.” (Note: Twazer was founded by Alchalel and Silverwood).

The campaign instructions: Those taking part must repost the photo on their individual Instagram accounts within 24 hours and tag Sunny Co. “EVERYONE” who followed the company’s guidelines – posting by 5pm on Wednesday – was told they would get a code enabling them to a “FREE” Pamela Sunny swimsuit, retail value $64.99.

The original post also noted that participants would have to pay shipping (which according to CBS amounted to $12). A subsequent post announced that deliveries could be delayed (it suggested a 3- to 6-week ship time) and that “due to the viral volume of participants, we reserve the right to cap the promotion if deemed necessary.”

Things went south when more than 3,000 people reposted the image, and then demanded their free swimsuit when the posting period was over. Per CNET, the swimsuit style “is completely sold out on [Sunny Co’s] website, and the company cannot handle the demand,” as indicated by comments on their original Instagram post. “In the Instagram posts where the comments are still available, irate users are calling the company a sham and threatening to sue.”

In the process, the Sunny Co Instagram account, which has since been deactivated entirely, amassed more than 776,000 followers. 

A Lawsuit in the Making?

As for whether the 3,000 Instagram users that reposted Sunny Co’s image have an actual cause of action, it is possible. Much like the Fyre Festival-goers, who have filed class actions lawsuits citing breach of contract and fraud, the Sunny Co. Instagram posters could likely make these claims, as well.

In order to claim breach of contract, they would have to show that Sunny Co. made an offer (a free swimsuit in exchange for an Instagram post); that the potential plaintiffs (the individuals who reposted the image on Instagram) accepted that offer; and that there was some form of “consideration,” a legal term meaning something that is exchanged for the performance or promise of performance by the other party (in this case, the individuals reposting the image on their Instagram accounts could very well suffice given that an Instagram post is the equivalent of billboard space or an ad page in a magazine nowadays).

In terms of fraud, the hypothetical plaintiffs would – put simply – have to show that Sunny Co made a misrepresentation of a material fact; Sunny Co knew or believed that the representation was false; the Instagram posters relied on the misrepresentation; and as a result, they sustained actual injury or loss. Here, the misrepresentation would likely be that “EVERYONE” who reposted the photo would receive a “FREE” swimsuit.

The hypothetical plaintiffs would have to argue that Sunny Co knew – or should have known – that they would not be able to fulfill the others. Still yet, the re-posters would have to show that they relied on the misrepresentation (aka, show that they re-posted the photos in order to receive the free swimsuit), and that they were damaged (were out an Instagram post and never received the swimsuit) as a result.

Given that the bathing suits are valued at $65 and all the girls (none of which appeared to be influencers, who can demand large sums for an Instagram post) really had to do was post on Instagram, it seems unlikely that a class action lawsuit will come about, unless one of these angry individuals wants to make a point and is not in it for the money. 

UPDATED (5/12/2017): It appears the backlash surrounding the contest got so bad that Sunny Co. had to hire itself a public relations representative. According to an email from San Diego-based BCI PR, a Media Relations, Community Relations, Crisis Strategy and Reputation Management firm, “Sunny Co assures customers it is moving at light speed to fulfill orders that are targeted to ship within 3-6 weeks, per the Promo Rules.” 

The email statement goes on to note, “Sunny Co cofounders Brady Silverwood and Alan Alchalel reiterated that they were completely caught off guard by the viral success of the promotion, and are working as quickly as possible to fulfill orders.  For any customers who inadvertently paid full price for the Pamela swimsuit since the promotion’s inception, customers can file a claim for a refund.  Thus far, the company has issued nearly $73,000 in refunds. Per the Promo Rules, all sales were final for customers who paid shipping and handling.”