The article quotes the dealer’s lawyer as stating that the dealer “relied on a third-party vendor that represented to us that the mailer did meet with all the applicable statutes and regulations.” You wonder if the vendor’s representations were in writing. You also wonder if the dealer’s contract with the vendor provided that if the vendor’s representations concerning the legality of the mailing program were false, the vendor would indemnify the dealer if the dealer suffered as a result of the falsity. Finally, you wonder if the dealer, or the dealer’s lawyer, did any due diligence on the vendor to determine whether the vendor was sufficiently solvent to make its representations and contractual undertakings worth anything.
You would like to feel sorry for this dealer, but personally can’t muster a lot of sympathy. Remember that this mail program went out in the dealership’s name, so, at the end of the day, it is the dealer’s responsibility to determine whether the mail program is legal or not. This dealer says he abdicated this responsibility to the mail house. Rather than do its homework and take responsibility for the legal content of the mailing program conducted in its name, the dealer took the business gamble that the mail house knew what it was doing.
Another reason I can’t rouse up any sympathy for the dealer is that the mailing materials shouldn’t have passed the dealer’s “smell test.” Whether the materials were legal or not, using materials that looked like checks and that were designed to give a false impression about their origin just isn’t straightforward marketing.
You can call me a stickler if you want, but I’ve still got my $250,000. Oh well, maybe the dealer’s insurance policy covers liability arising out of advertising campaigns.