You may have wondered why there was a mob scene surrounding Jet Blue personnel in Lower Manhattan earlier this month, or why people were chasing JetBlue employees through the streets of New York City. Well, as it turns out, it was all part of JetBlue’s moving target promotional giveaway — part of its 10th anniversary celebration — in which JetBlue gave away one thousand free airline tickets at three undisclosed locations in Manhattan for a round-trip flight between any destination that JetBlue flies. JetBlue announced the locations at which the tickets would be given away on its Twitter account, notifying those seeking the free tickets that they had to bring something with them to each of the giveaway locations, including, at the first stop, a birthday card for JetBlue; at the second, an item of blue clothing and something related to planes; at the third, a postcard depicting the tenth city out of which JetBlue started operating flights (i.e., West Palm Beach). The free tickets — with about 300 available at each location — were gone within about 20 minutes of each Twitter posting.
Moving target giveaway promotions — like JetBlue’s — have been used by other companies, including the Los Angeles based Kogi BBQ, with resounding success. But are these promotions legal? Well, it might just depend on how the promotional giveaway is structured.
Just about every state has enacted laws regulating games of chance used to promote a business or its products. These states are uniform in defining an illegal game of chance as one that involves the elements of chance, a prize, and consideration. There are, however, considerable differences in how state courts have interpreted these elements, and in particular the consideration component. The majority of state courts have found that consideration must involve a direct payment to participate in the promotional game. On the other hand, a few state courts have viewed consideration more broadly, some going so far as to find consideration in the act of visiting a store to pick up a free entry blank.
Given the uncertainty in the laws governing games of chance in many jurisdictions, companies who are contemplating promotional giveaways, including moving target promotions, should assess state law carefully to make sure the giveaway does not create potential legal issues in a state with an undefined or broad view of consideration. After all, the media buzz which often surrounds these promotions can make them an enticing target for an enterprising district attorney.
