Day 025 - 16 Sep 94 - Page 27


     
     1        within the mind of the advertiser and the advertising
     2        agency you would, in most instances, be able to find that
     3        it had been done with deliberate intent to deceive.  The
     4        law does not require that putting the burden on the
     5        advertiser, who does have the specialised knowledge of how
     6        consumers think and behave, to ensure that they are
     7        honestly advertising to consumers as they find them,
     8        rather than as we might wish consumers were.
     9
    10   MR. RAMPTON:  May I know then precisely, Mr. Gardner, what your
    11        assertion is in relation, as to McDonald's liability, if
    12        you like, in relation to this particular advertisement
    13        that we have been looking at, the cholesterol
    14        advertisement?
    15        A.  Which aspect of it, Mr. Rampton?
    16
    17   Q.   I want to know why you say this advertisement infringes
    18        Texas law.
    19        A.  I do not say it infringes.  I would say it violates. I
    20        do not know what you mean by "infringes".
    21
    22   Q.   I do not mind what word you use.  Why is it a breach of
    23        Texas law?
    24        A.  I need to look at it and I have got several things in
    25        front of me.  Are you through questioning me from 6?
    26
    27   Q.   I am not trying to make life difficult.  I am trying, if
    28        I can, to save time.  Turn to page 132 of tab 34 in that
    29        bundle for the moment.  Let us take it in its proper
    30        order.  Start at page 131.  This is a letter signed by
    31        Mr. Mattox himself, yes?
    32        A.  Yes.
    33
    34   Q.   Can you tell me, at this distance of time, whether he
    35        wrote the words or whether somebody else drafted them for
    36        him?
    37        A.  I cannot -- I do have too many things here.  May I put
    38        volume VI away?
    39
    40   Q.   Put that one away.  We do not need that one any more for
    41        the moment anyway.  You cannot remember whether he wrote
    42        it himself.  Do you think you might have had a hand in the
    43        drafting of this letter?
    44        A.  Mr. Rampton, I did not say I could not remember.
    45
    46   Q.   Do you think that you may have had a hand in the drafting
    47        of this letter?
    48        A.  I can tell the court with about a 99 per cent
    49        probability what happened here, knowing how we did handle
    50        matters of this nature.  I cannot tell you this is 
    51        absolutely it.  But I am fairly positive that this 
    52        occurred, if you will. 
    53
    54   Q.   I just wanted to know whether you were involved in the
    55        drafting of this letter.  That is all.
    56        A.  Normally speaking, I would have been.  I had authority
    57        to send out this letter without, over my signature,
    58        without Mr. Mattox's review or signature.  In this
    59        instance, as in the instance, I believe we were talking
    60        about the 1986 letter from the Attorneys General Mattox

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