In a recent case, a consumer claim was filed against AMX Argentina S.A., the Argentine subsidiary of the Mexican mobile company Claro. A consumer claimed that she had participated in a promotion, in which a Mini Cooper was offered. What was not clear was that the promotion was only to win the right to participate in a raffle for the Mini Cooper.
The Plaintiff filed a complaint against AMX Argentina S.A., claiming breach of contract. The complaint stated that on November 2, 2008, the Defendant had sent a text message to her mobile phone inviting her to participate in a trivia contest for winning a brand new Mini Cooper. According to the message received, she had to send a text message with the word "mini" to the number "333", and AMX Argentina S.A. would charge her $2.99 per message. The promotion consisted of answering questions sent by the Defendant, and texting back the response through different text messages.
After answering the questions and having received messages from the Defendant confirming the correct responses, on November 3, 2008 the company informed her that she had succeeded in amassing 39.500 points in the process, the highest number of points in the promotional game. Consequently, the Plaintiff considered herself to be the winner and attempted to claim the prize (the Mini Cooper). After calling a customer service number, the company explained to her that what she had won was the right to participate in a raffle for a Mini Cooper car conducted by the National Lottery.
For starters, the Plaintiff filed a claim before the Consumer Rights Bureau. At this stage, the parties had a hearing, but did not settle the case. The Plaintiff invited the Defendant to a mediation hearing, but no agreement was reached. Subsequently, the Plaintiff filed a complaint claiming damages based on the misleading advertising and breaching of contract, plus delivery of the Mini Cooper, as well as a compensation for moral damages and punitive damages. The Plaintiff claimed that she was invoiced up to five times the amount she usually spent for the use of the mobile phone before participating in the promotion.
In the first instance decision, the judge held that no mention was made by the company within the text messages sent to the client to the existence of terms and conditions applicable to the promotion. Moreover, he held that this was evidence of misleading advertising.
The judge decided in favor of the Plaintiff obliging the Defendant to deliver a Mini Cooper car, but rejected the claims for moral damages, as well as punitive damages. The judge pointed out in his decision that none of the text messages sent to the client had any reference to the existence of terms and conditions, required in any promotion. Finally, the judge decided that the messages sent by AMX, communicating the promotion to clients, was misleading advertising.
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