# Petition — Fedders Corp. v. Federal Trade Commission > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_2268%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1976 - **Citation:** 429 U.S. 818 ## Text Se FILED {APR 19. 1976 In THE Supreme Court of the United States October Term, 1975. Guy. No. 75-1508 FEDDERS CORPORATION, Petitioner, Vs. FEDERAL TRADE COMMISSION, Respondent. Petition (With Appendix) for Writ of Certiorari to the United States Court of Appeals for the Second Cir- cuit. SypNEY B. WERTHEIMER JEFFREY H. SCHNEIDER Attorneys for Petitioner 425 Park Avenue New York, N. Y. 10022 WEISMAN, CELLER, Spett, Mop.iin, WERTHEIMER & SCHLESINGER Of Counsel Suprerne Court. U. S. - TABLE OF CONTENTS Oprnions BELOw JURISDICTION — QueEsTION PRESENTED ... ” Sratrrory Provisions INVOLVED ns STATEMENT OF THE CASE ™ Reasons FoR GRANTING THE WRIT CoNncLUSION APPENDIX: Complaint Order Amending Complaint Order Further Amending Complaint Answer to Further Amended Complaint -......... Initial Decision, Dated July 15, 1974 Final Order, Dated January 14, 1975 Decision and Opinion of U. S. Court of Appeals Copies of Five Advertisements referred to in Petition Cases Cited Country Tweeds, Ine. v. F.T.C., 326 F.2d 144 (2d Cir. 1964) Ri IF.T.C. v. Colgate-Palmolive Co. 380 U.S. 374 (1965) A 11 u INDEX F.T.C. Mandel Bros., Ine., 359 U.S. 385 (1950)............ “— F.T.C. v. National Lead Co., 352 U.S. 419 (1957)........ 12 F.T.C. v. Ruberoid Co., 343 U.S. 470 a 6,12 Firestone Tire and Rubber Co., 481 F.2d 246 (6th Cir. 1973), cert. den., 414 U.S. 1112 (1973).............. 11 Jacob Siegel Co. v. F.T.C., 327 U.S. 608 i 6,12 Royal Milling Co. v. F.T.C., 288 U.S. 217 (1933)........ 6,13 Vanity Fair Paper Mills, Ine. vy. F.T.C., 311 F.2d 450 (2d Cir. 1962) 8 edt it tt Li eee te tee thie tt. tn Oe ee eer eee eee eee eee itt ttt LL tt tte eeeeee ee eeeeeeee 28 U.S.C.: IN THE Supreme Court of the United States October Term, 1975 No. —_<>— FEDDERS CORPORATION, Petitioner, against FEDERAL TRADE COMMISSION, Respondent. PETITION (WITH APPENDIX) FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT The petitioner, Fedders Corporation (“Fedders”), prays that a writ of certiorari be issued to review the final judg- ment herein of the United States Court of Appeals for the Second Circuit (the “Court of Appeals”). Opinions Below The opinion of the Court of Appeals, to date unre- ported, is reproduced in the Appendix (App. 69a). The cease and desist order (the “Commission’s Order”) and the Opinion of the Commission, rendered by Commis- sioner Paul Rand Dixon are reproduced in the Appendix (App. 58a). Jurisdiction The judgment of the Court of Appeals herein was dated and entered on January 21, 1976. The jurisdiction of this Court is invoked under 28 U.S.C. §1254(1). Question Presented Whether the Court of Appeals erred in sustaining the Commission’s Order insofar as it forbade a very broad spectrum of unlawful practices* which, Fedders submits, are not reasonably related to the single un- lawful practice charged and proven**. Statutory Provisions Involved (a) Section 5 (a)(1) of the Federal Trade Commission Act, 15 U.S.C. 45(a)(1), which reads as follows: “Unfair methods of competition in or affecting ecommerce, and unfair or deceptive acts or practices in or affecting commerce, are declared unlawful.” * To wit, any false statement as to the air cooling, dehumidifica- tion, or circulation characteristics, capacity or capabilities of any — In THE MatTrTeR of Feppers CorporaTIoNn, a corporation. Docket No. 8932 <>— Opinion of the Commission. By Dixon, Commissioner : The complaint in this matter was issued on June 11, 1973, and charged respondent with dissemination of false and misleading advertisements in violation of Section 5 of the Federal Trade Commission Act, as amended (15 U.S.C. 45). In particular the complaint alleged that respondent had represented through advertisements in newspapers of interstate circulation that (1) “reserve cooling power™ is a unique feature of its room air con- ‘Hereinafter sometimes ‘‘RCP,’’ stipulated by the parties to mean ‘‘ability to function satisfactorily under conditions of extreme heat and humidity.’’ (I. D. 8) The foliowing abbreviations are used herein: I. D. —TInitial Decision (Finding No.) I. D. p. —Initial Decision (Page No.) RB —Respondent’s Appeal Brief (Pave No.) ew te lin \ m : : 63a Final Order, Dated January 14, 1975 ditioners, not found in other room air conditioners; (2) Fedders’ room air conditioners compared with all other room air conditioners have a significantly increased cool- ing capacity at high loading conditions under customary conditions of use; and (3) Fedders had a reasonable basis for concluding that its produet compared with all other room conditioners has said increased cooling capacity. Drawing on a brief record consisting of stipulations, joint exhibits, and a few respondent’s exhibits’, the administra- tive law judge sustained the complaint and recommended entry of an order. On appeal respondent has taken es- sentially the same position as it took before the adminis- trative law judge, conceding the falsity of, and absence of reasonable basis for, the challenged representations but raising so-called affirmative defenses of “abandonment” and “insubstantiality,” and arguing in the alternative that the order should be diminished in scope. We find the af- firmative defenses to be patently without merit, as did the administrative law judge, but we believe that a slight modification of the order he has proposed is appropriate. I. [nsubstanttality Respondent argues that it should be absolved from any liability in this matter because the number of offending advertisements constituted only a small percentage of re- spondent’s total advertising expenditures. Evidence sub- mitted by respondent indicated that in four sample areas, New York, Philadelphia, Washington, D. C., and Florida, during the sample two-year period ending August 31, 1971, the number of untruthful advertisements totaled 173 *In describing the record in this case, the administrative law judge neglected to make reference to certain exhibits sub- mitted by respondent separately (I. D. p. 5, third full para- graph). There is no indication, however, that the administra- tive law judge did not actually consider these exhibits in fashioning his decision, and in any event the Commission has fully considered said exhibits in its own review of the record. 64a Final Order, Dated January 14, 1975 or 0.8% of all advertisements for reserve cooling power, and expenditures on such advertisements were $18,269 or 6.0% of all expenditures for advertisements touting RCP. (1. D. 17, 18) Respondent asserts in its appeal brief that the sample area accounted for “at least 35%” of its total United States’ sales and advertising expenditures for the sample period.’ Whatever the total number of offending advertisements may have been, it is clear to us that evi- dence from the sample area alone was quite sufficient to destroy whatever weight might be accorded respondent’s defense of insubstantiality. The Commission has previously issued orders in cases involving no inore than one or a few deceptive advertise- ments. [See Gimbel Bros., 60 FTC 359, 368 (1962), appeal dismissed per stipulations, No. 14019 (3d Cir. Oct. 8, 1962) unreported; Gimbel Bros., Inc., v. FTC, 116 F. 2d 578, \79 (2d Cir. 1941).] Here, in an area apparently ac- counting by respondent’s estimate for far less than half of all its sales, 173 separate false advertisements were disseminated over a two-year period. This was 173 more than the law allows, and far more than warrant an ap- peal to the discretion of the Commission to omit an order in a litigated case. The fact that these advertisements constituted only a small percentage of respondent’s total advertising program is wholly irrelevant. It merely demonstrates the truism that a larger advertiser inevitably "RB 13. The administrative law judge, noting that adver- tisements for RCP had been run for several years prior to the sample period, concluded that the actual number of offend- ing advertisements may have totaled in excess of 1,000. (I. D. p. 27) Respondent challenged this extrapolation, though it did agree to use a sampling procedure. The parties apparently disagree as to whether the sample may be taken as representa- tive of Fedders’ advertising during the entire period in which RCP advertisements were run, or simply as representative of Fedders’ advertising throughout the country for the sample two-year period. Resolution of this disagreement is not neces- sary for our decision. 65a Final Order, Dated Janwary 14, 1975 has more opportunities than a smaller one to engage in ceceptive practices. Similarly, we are entirely unim- pressed with the fact that the offending advertisements appeared in non-urban newspapers with less circulation than metropolitan dailies. We are pleased to note, how- ever, that respondent does not maintain that “deception is all right if practiced in moderation” nor that “decep- tion is permissible if practiced in small town newspapers of limited cireulation” (RB 13-14), though the learned administrative law judge may be excused for having re- ceived the contrary impression. (I. D. p. 27) In all events the magnitude of the false advertising in this case cannot constitute an affirmative defense to the allegations of the complaint, nor does it give any reason to think that an order is not required to remedy the violation. Il. Abandonment Respondent further argues that it abandoned the offend- ing practice in late 1971. It was stipulated at trial that RCP advertising was discontinued at this time, following determination by respondent, in response to an advertising substantiation order served on it by the Commission, that claims for the uniqueness of RCP could not be substan- tiated. The Commission has been properly parsimonious, if not totally unvielding, in its adjudicative recognition of the defense of abandonment, and courts have been re- luctant to vacate Commission orders on those grounds except in the most extreme circumstances not present here, such as where a corporate respondent had existed from the relevant line of business under circumstances in which re-entry seemed improbable. National Lead Co. v. FTC, 997 F. 2d 825, 839 et seq. (7th Cir. 1955), reversed in other respects, 352 U. S. 419 (1957). Certainly the mere dis- continuance of an offending practice in the face of in- quiry by a law enforcement agency can under no circum- stances he argued to amount to a defense. It is undis- puted that respondent did not discontinue the challenged advertising until it had received an Order to File Special 66a Final Order, Dated January 14, 1975 Report, requesting substantiation for the false representa- tion. The situation is in essence no different from that in Coro, Inc., 63 FTC 1164 (1963), aff’d 338 F. 2d 149 (ist Cir. 1964), cert. denied 380 U. S. 954 (1965), upon which the administrative law judge relied. While it is true that the mere issuance by the Commission of an advertising substantiation order is not meant to imply that the re- cipient is suspected af wrongdoing, it is also clear that an order to file this special report pursuant to Section 6(b) of the FTC Act is an investigatory tool of the Com- mission, just as much as a subjoena issued pursuant to Section 9 of the Act, and having received such an order Fedders’ subsequent discontinuance can hardly be viewed as being borne of spontaneous recognition of the error of its ways. Respondent disseminated plainly false adver- tisements for at least two years, discontinuing them only upon discovering that at long last the government would be reviewing the claims. These circumstances are not such as can breed confidence that respondent may be re- lied upon in the future to regulate its own advertising when the government may again not be looking over its shoulder, without the encouragement of an order. And we find without merit the contention that the circumstances of discontinuance in this case should be consdered an affirmative defense to an otherwise plain violation of law.‘ ‘It is also unclear, as the initial decision points out, to what extent respondent has actually managed to eliminate false claims of the sort challenged here from its advertising. (I. D. pp. 34-35.) It appears that in March 1974, an adver- tisement ran in Newsweek claiming ‘‘exclusivity’’ for a feature of respondent’s ‘‘Climatrol” brand room air conditioner when in fact others of respondent’s air conditioners possessed the same attribute. We do not think that this circumstance is es- sential to our finding that the abandonment defense must fail. It is, however, an additional ground for that conclusion, and suggests that even during the pendency of these proceedings, when respondent has had an unusual interest in avoiding repeti- tion of false claims (to demonstrate the lack of necessity for an order) it has been unable to do so. ell sahara alana Reena s enn hath wnat le sat Alea 67a Final Order, Dated January 14, 1975 Ill. Order The argument put forth most seriously by respondent concerns the scope of the order entered by the adminis- trative law judge. Respondent objects to paragraph II of the order, which prohibits false performance claims, and to paragraph III, to the extent it requires mainte- nance of substantiating materials for performance claims. Respondeut contends that the representation challenged in this case was not a performance claim at all, but only a uniqueness claim, and that the order should be no broader that paragraph I, which prohibits false uniqueness claims, while paragraph III should be modified to require main- tenance of substantiation for uniqueness claims only. We cannot agree that the false representations here in question dealt only with “uniqueness” and not “perform- ance,” nor do we believe that an order dealing only with uniqueness claims would be in the public interest or serve to prevent future occurrences of the sort involved here. In claiming that only Fedders’ air conditioners pos- sessed RCP, respondent was clearly making a statement about the performance of its product, namely that this performance was unmatched. What rendered these false representations material in the eyes of consumers, and no doubt what led respondent to make them, was the message they conveyed about the relative performance of the prod- uct, and not merely the message of “uniqueness” in some disembodied sense.* An order addressed only to unique- SConsider an advertisement for air conditioners that repre- sented them to be unique because of being painted with red, white, and green stripes. Certainly the consumer would be left thinking that the advertised air conditioner was ‘‘unique,’’ but the Commission might be at pains to show that such a claim was material, nor can we imagine a sane advertiser spending money to make it. Uniqueness is obviously both an attribute in itself and one facet of broader categories of product characteristics, such as price, performance, and warranty terms. 68a Final Order, Dated January 14, 1975 ness claims and not to performance claims would be in- adequate to insure that the same species of misrepresenta- tion as has here occurred will not happen again. It remains then to consider the scope of the prohibition on false characterizations of performance. The adminis- trative law judge and complaint counsel recommend a prohibition on misrepresentation of all performance char- acteristics. The performance characteristic in this case which was untruthfully and without reasonable basis rep- resented to be unique involved air cooling capacity under conditions of extreme heat and humidity. In view of all the circumstances of this case, including the fact that only one performance characteristic was misrepresented, we be- lieve that the order should be narrowed slightly to forbid only misrepresenttaions of performance characteristics of the general sort involved in the offending advertisements. An appropriate order is appended. By the Commission. January 14, 1975 ee ne ee er rs —— sa nie acres Niet it Fe a 69a Decision and Opinion of U. S. Court of Appeals. UNITED STATES COURT OF APPEALS For THE Seconp Circuit No. 104—September Term, 1975. (Argued October 31, 1975 Decided January 21, 1976.) Docket No. 75-4051 —— Before: Mutuican, Oakes and MEsKILL, Circuit Judges. Petition to review cease and desist order issued by Federal Trade Commission against Fedders Corporation. Petitioner’s claim is that the FTC order applies to unsub- stantiated “performance” claims although its advertising was deceptive only insofar as it claimed “uniqueness.” Petition denied. Sypney B. Werruermer, New York, N. Y. (Jef- frey H. Schneider, Weisman, Celler, Spett, Modlin & Wertheimer, New York, N. Y., of counsel), for Petitioner. 70a Decision and Opinion of U. S. Court of Appeals Dennis H. Hynes, Attorney, Federal Trade Com- mission (Robert J. Lewis, General Counsel, Gerald Harwood, Assistant General Coun- sel, Federal Trade Commission, of counsel), for Respondent. Oakes, Circuit Judge: Petitioner seeks review of a final order entered against it by the Federal Trade Commission. The order stems from an investigation and determination by the Commis- sion that petitioner has made serious misrepresentations in the advertising claims it has used to promote sales of its air conditioning equipment. Specifically, the Commis- sion found that Fedders has claimed in its advertising that its air conditioners are unique, because they have “reserve cooling power,” a term which the parties agree was in- tended to imply an unusual ability to produce cold air under extreme conditions of heat and humidity. In fact, however, the Fedders conditioners had no objective tech- nical advantage over the equipment manufactured by its competitors. Accordingly, the Commission concluded that petitioner was engaging in misrepresentations in its adver- tising in violation of Section 5(a) of the Federal Trade Commission Act, 15 U.S.C. §45(a).' A cease and desist 15 U.S.C. §45 provides in pertinent part: (a)(1) Unfair methods of competition in commerce, and unfair or deceptive acts or practices in commerce, are de- clared unlawful. (6) The Commission is empowered and directed to pre- vent persons, partnerships, or corporations . . . from using unfair methods of competition in commerce and unfair or deceptive acts or practices in commerce. | ; : : 71a Decision and Opinion of U. S. Court of Appeals order was entered by the Commission which prohibits Fedders from:? 1. Representing, directly or by implication, that any air conditioner, on the basis of a comparison thereof with the air conditioners of other manufacturers then being marketed in the United States in commercial quantities, is unique in any material respect, unless such is the fact; 2. Making, directly or indirectly, any statement or representation in any advertising or sales promotional material as to the air cooling, dehumidification, or cir- culation characteristics, capacity or capabilities of any air conditioner, unless at the time of such represen- tation respondent has a reasonable basis for such statement or representation, which shall consist of competent scientific, engineering or other similar ob- jective material or industry-wide standards based on such material... . Review is sought here under 15 U.S.C. §45(ce). *Other provisions of the Commission’s order require the peti- tioner to maintain records available for FTC staff inspection which show the documentary materials in support of any claim disseminated in Fedders advertising concerning ‘‘the air cooling, dehumidification, or circulation characteristics, capacity, or capa- bility of, or the uniqueness of any feature of, any of respondent’s air conditioners.’’ The order was issued on January 14, 1975, and is to be in effect for a period of ten years. (2a Decision and Oninion «; U. &. curt of Appeals Fedders does not challenge §° Commission’s finding that Fedders’ advertising in,vlved misrepresentations.* Instead, it contends that the Commission’s order is imper- missibly broad in that it prohibits practices which are not sufficiently related to the unlawful practice actually found by the Commission and that these practices are, therefore, outside the proper scope of the Commission’s remedial order. See Jacob Siegel Co. v. FTC, 327 U.S. 608 (1946) ; FTC v. Royal Milling Co., 288 U.S. 212 (1933). More spe- cifically the claim is, as it has been all along,* that the order appealed from covers not only “uniqueness” claims of the type which has been found false by the administra- “There were in fact three misrepresentations found by the Commission, none of which are chailenged here: (1) that ‘‘re- serve cooling power’’ is a unique feature of the Fedders room air conditioners; (2) that Fedders room air conditioners com- pared with all other conditioners have a significantly increased cooling capacity at high loading conditions urder customary use; and (3) that Fedders had a reasonable basis for concluding that compared with all other room air conditioners its product had that increased cooling capacity. As will be diseussed in the text below the Commission also found that |ijm claiming that on!y Fedders’ air conditioners possessed RCP, respondent was clearly making a statement about the performance of its product, namely that this performance was unmatched. What rendered these false representations material in the eyes of consumers, and no doubt what led respondent to make them, was the message they conveyed about the relative performance of the product, and not merely the message of ‘‘uniqueness” in some disembodied sense. ‘The Commission in its original complaint set forth an order which it had ‘‘reason to believe should issue’’ if the facts were found as indeed they were. Paragraph 4 of this draft order for- bade any performance claims unless substantiated and from its initial answer petitioner has objected to any restriction on “‘per- formance’’ claims. Paragraph 2 of the administrative law judge's order applied to any and all unsubstantiated performance claims but the Commission’s final order, set forth in the text at footnote 2, limited this paragraph to performance claims relating to ‘‘air cooling, dehumidification, or circulation characteristics.’’ 73a Decision and Opinion of U. S. Court of Appeals tive law judge, but also covers advertising claims with respect to “performance characteristics” of the prodwet, i.e., air cooling, dehumidification and circulation, which Ped- ders claims were not involved in the FTC proceeding. Since Fedders quite properly agrees that the Commission has the power within its diseretion to enjoin “like and relwted acts” to the one condemned, FTC v. Mandel Bras., Ime., 359 U.S. 385, 393 (1959), the question before us is whether the Com- mission’s order is sufficiently narrow to some within that standard. We hold that it is and deny the petition for modification of the order. There is much broad language in the cases that the Com- mission has a wide discretion in its choice of a remedy to “cope with the unlawful practices” disclosed by the record. Id. at 392; Jacob Siegel Co. v. F7©, supra, 327 U.S, at 611. The Commission is not limited to prohibiting “the illegal practice in the precise form” existing in the past. FTC v. Ruber- oid Co., 343 U.S. 470, 473 [1952]. .This agency, like others, may fashion its relief’ to restrain “other like or related unlawful acts.” Labor Board v. Express Pub. Co., 312 U.S. 426, 436 | 1941], FTC wv. Mandel Bros., Inc., supra, 359 U.S at 392. “One eannot generalize as to the proper scope of these orders. It depends on the facts of each case and a jadgment as to the extent to which a particular violator should be fenced in.” Jd. Congress has placed the primary responsibility for fashioning orders upon the Commission, and for this reason the courts should not lightly choose to modify the Commission’s orders. FTC ». Colgate-Palmolive Co., 380 U.S. 374, 392 (1965); FTC © Cement Institute, 333 US. 683, 726 (1948). So long as the remedial order is reason- ably reiated to the unlawful practiees found to exist, the Commission’s order should he upheld. FTC v. National Lead Co., 352 U.S. 419, 428 (1957); Hoving Corp. v. PTC, 290 F. 2d 803, 806 (2d Cir. 1961). 74a Decision and Opinion of U. 8. Court of Appeals At the same time we take full cognizance of the peti- tioner’s point that, as we expressed it in Country Tweeds, Inc. v. FTC, 326 F. 2d 144, 149 (2d Cir. 1964), the overall concept of “reasonableness” has required the narrowing of deceptive advertising orders so that they more closely relate to the offending co. duct while “still sufficiently pro- hibiting ‘variations on the basic theme.’” See Vanity Fair Paper Mills, Inc. v. FTC, 311 F. 2d 480, 487 (2d Cir. 1962). See also Spiegel, Inc. v. FTC, 411 F. 2d 481 (7th Cir. 1969). Mr. Justice Jackson’s admonitions in his Ruberoid dissent, 343 U.S. at 480 et seq., have not gone unheeded in the courts. And we are fully aware of the suggestion in FTC v. Henry Broch & Co., 368 U.S. 360, 367-68 (1962), reiterated in FTC v. Colgate-Palmolive Co., supra, 380 U.S. at 392, that the stiff penalty procedures under §45(J), see Brown & Williamson Tobacco Corp. v. FTC, No. 75-6081 (2d Cir. Dee. 22, 1975), slip op. 1187, may well require a more specific and precise order than would have been necessary prior to the enactment of those penalties in 1959.° We note, however, that no problem of lack of spec- ificity or precision in the order is involved here. Fedders’ argument is that a false “performance” claim is not simply a “variation upcn the basie theme” of a false “unique- ness” claim. A performance misrepresentation, the argu- ment runs, is an offense so distinct from and so much greater than a faise claim of uniqueness as not to be “like or related.” There is no dispute that paragraph 1 of the Commis- sion’s order is reasonably related to the unlawful misrep- "See United States v. J. B. Williams Co., 498 F. 2d 414 (2d Cir. 1974), for the statutory scheme regarding penalties. Professor Jaffe attributes the Vanity Fair and Country Tweeds modifications of FTC orders to the suggestion in FTC v. Henry Broch & Co., 368 U. 8. 360 (1962). See L. Jaffe, Judicial Control] of Administrative Action 316-18 (1965). ee Re ea ee 75a Decision and Opinion of U. S. Court of Appeals resentations Fedders has engaged in. Ordering Fedders to cease and desist from making claims that its air con- ditioners are “unique in any material respect, unless such is the fact,” is obviously directly responsive to the Com- mission’s finding that Fedders’ claim that its products possessed a “reserve cooling power” was a spurious claim of unique product quality. Petitioner properly concedes that the Commission has authority “to frame its order broadly enough to prevent [the petitioner] from engaging in similarly illegal practices in future advertisements.” FTC v. Colgate-Palmolive Co., supra, 380 U.S. at 395. Clearly, paragraph 1 of the order in this case was made well within that authority. Paragraph 2 of the FTC order, we think, stands on no different footing. This part of the order, which forbids petitioner from making advertising claims as to the “air cooling, dehumidification, or circulation characteristics, capacity or capabilities of any air conditioner” unless sub- stantiated is also reasonably related to the prior misrepre- sentations which Fedders employed in its sales program. The false claim made by Fedders that its air conditioners possessed “reserve cooling power” implied that some fea- ture of the cooling, dehumidifying or circulation systems of the equipment allowed them to perform better than other air conditioners would at extreme temperature and humidity conditions. That is to say, the vague design claim relating to a reserve cooling power implicated the basic performance characteristics of the entire product. The administrative law judge put it somewhat confusedly when he said that “Respondent has admitted disseminating a false performance claim for its room air conditioners relating to the uniqueness of the ability of its room air conditioners to function satisfactorily at conditions of ex- treme heat and humidity.” The respondent, petitioner here, 76a Decision «nd Opinion of U. S. Court of Appeals made no such admission but rather admitted only false claims of uniqueness, the only deceptions charged in the complaint. But as the Commission held, note 3 supra, the claim of uniqueness in having “reserve cooling power” was also a performance claim by implication. “Uniqueness,” as the Commission footnoted, “is obviously both an attribute in itself and one facet of broader categories of product characteristics, such as price, performance and warranty terms.” As to this finding, that the uniqueness claim as to reserve cooling power implies to consumers a claim of high eooling performance in extreme conditions of heat and humidity, we are in the very realm of the Commission’s greatest expertise—what constitutes deception in advertising. See United States v. J. B. Williams Co., 498 F. 2d 414, 445 (2d Cir. 1974) (dissenting opinion). As such the reviewing court must give the Commission’s findings “great weight.” See 'TC v. Colgate-Palmolive Co., supra, 380 U.S. at 385. On the basis of this finding of implicit misrepresentation the remedial order appears sound as reasonably related thereto. National Dynamics Corp. v. FTC, 492 F. 2d 1333, 1236 (2d Cir.) (per euriam), cert denied, 419 U.S. 993 (1974). By limiting the order to unsubstantiated repre- sentations as to “cooling, dehumidification, or circulation characteristics, capacity or capabilities,” as opposed to the administrative law judge’s proscription as to “any” per- formance characteristic, which would include energy usage, durability or quietness, for example, the Commission has done the necessary limitation which reasonableness would require. More than this a reviewing court may not direct. Fedders makes two additional arguments bearing upon the scope of the Commission’s order, but these are subject to speedy disposition. Petitioner argues that since the unlawful acts complained of had been discontinued prior to the filing of the Commission’s complaint, its cessation of the offending activity, combined with its written assur- em gem eee A Ee ATE Bi nen Ae 77a Decision and Opinion of U. S. Court of Appeals ance that it will not again resume it, weighs in favor of limiting the order. See Country Tweeds, supra, 326 F. 2d at 149. The fact that Fedders may have discontinued the offending practice before the Commission issued the com- plaint in this case, however, does not bar a cease-and-desist order, where the public interest otherwise requires it. Diener’s, Inc. v. FTC, 494 F. 2d 1132, 1133 (D.C. Cir. 1974) (per curiam) ; Cotherman v. FTC, 417 F. 2d 587, 595 (5th Cir. 1969) ; Libby-Owens-Ford Glass Co. v. FTC, 352 F. 2d 415, 418 (6th Cir. 1965). Furthermore, the term “reserve cooling power” had been used in Fedders advertising for six or seven years—the claims were described in a bulletin to its distributors as “[o]ld powerful selling friends.” These were not, then, merely casual advertising claims. Their discontinuance, the administrative law judge found, was not a “voluntary action” but came about as a result of Fedders’ “awareness of the Commission’s investigation of its advertising.” The propriety of the order, under the case law, cannot be challenged. Coro, Inc. v. FTC, 338 F. 2d 149, 153 (1st Cir. 1964), cert. denied, 380 U.S. 954 (1965) ; Galter v. FTC, 186 F. 2d 810, 812-13 (7th Cir.), cert. denied, 342 U.S. 818 (1951). Fedders also claims that the Commission’s order is overly broad because it is not, by its terms, limited to objective representations of uniqueness or performance character- istics but also prohibits subjective product claims which are, by definition, incapable of being proven by “scientific or engineering” data. But we do not read the order to have intended the restriction suggested by petitioner. It is only the claim which fairly, if not necessarily, implies some underlying objective basis which the order reaches. We would not hamstring the Commission by reading its order to apply only to “objective” claims, since it is the impliedly as well as actually objective assertions which effect the deception the Commission is attempting to forestall. On the other hand, we need not and do not consider, in the 78a Decision and Opinion of U. S. Court of Appeals light of the proceeding below, see Swift & Co. v. United States, 393 F. 2d 247, 256 (7th Cir. 1968), that the order was aimed at the purely subjective arguments which mer- chants sometimes indulge in while hawking their wares.* The Commission order may not be construed to have in- tended to restrict petitioner by requiring objective data to support purely subjective claims; absent an aura of underlying objective support suggested by the advertise- ment when viewed as a whole. If there is any uncertainty in the application of this order to the petitioner, the uncer- tainty may be resolved under the Commission’s Rules of Practice which permit petitioner to ascertain in advance whether a particular advertising claim comes within the scope of the order, 16 C.F.R. §§ 3.61(d), (e). FTC v. Col- gate-Palmolive Co., supra, 380 U.S. at 394; Vanity Fair Paper Mills, Inc. v. FTC, supra, 311 F. 2d at 488. Petition dismissed. *The Commission, in its brief, has admitted that ‘‘to the ex- tent that Fedders makes claims that are solely subjective for their product, there is no need for substantiation.’’ Copies of Five Advertisements Referred to in Petition. (See opposite page.) j= 79a 7Ia2 ° od t : C Mian ne : New: E005 2° ° oY pdsi2 Beg AM wv) J : | | 5-14 - 70: | | = oars Po Fr SS: is: st 3,...2 (8,420 CAiL US FOR ~ *° OUR LOW on mre at oe te —-: ~- | —— Pa Bat * 1 O ive oi [ef Per ey rle de e,? ‘ . ‘ 4 @ i oO \~_- : | pam aa 4 tj A . } Ss: ; at « \ oe ee =" . om ES % a. YS TE ae = xy z eo - eee eRe le eT Seay, OF es EGRea=T IOC : Lu add de ‘ J suid, 15,000 BTU’s operates on both 230 and 208 volts Q-:. PN 1 \NFNFS 2a4; i! 1 2° oo ee fei Om (ye reg. $269.95 Model ACTISF7EY Y ated Count on really great multi-room cooling and count up the big savings, too. This special Fedders Red Ribbon air conditioner is only 24” wide — packs more comfort for its siza than any air con- ditioner made. Coois large open-plan living dining areas — even an entire floor of a modest home. Cools quietly too, thanks to Sound B-: ‘er design, Fedders total approach to sound contro’. This is the pre-season air conditioner yalue of the year. Get this famous Fedders today, pocket the savings, and look forward to the most refreshing summer of your life. rae aaa f ete ht oe ry r 7 — ) yee ~ vit { a RY ea ~, gw ia = r ! ix | eg il wr aals ern O° verbs ise Morin! —: =a © WZ gi) ‘uA S&S Sees dette aie ht a ket ee ee er Cee B Quiet Sound Barrier Design @® Hand-crafted appearance; concealed controis i Super Cool and u!tra-quiet lo @ Automatic precision thermostat @ Fingertip variable air direction Bi Fiex-Mount pull-out sides fa Washable germicidal tilter BB Powerful dehumidification B Exclusive Reserve Cooling Power @ Totally enclosed-zinoclad cabinet Other Great Red Ribbon Values 115 volts, 7.5 amps only $179.95 reg. $209.95 for master bedrooms, other medium-size rooms Model ASTO7F2EY f 7,000 BTU’s lire | Reon 11,000 BTU’s 115 volts, 12 amps only $21 9.95 reg. $259.95 for large areas, even two rooms Model ACTIIF20¥ _ FEDSDERS a World's Largest as ai Selling Air | ; Conditioners are mo [House of Air Conditioaiag |~ = PetersBur a IndependesT + o/ ew | . f&) | BEST COPY AVAILABLE *. ~~ - . | . > 4 | , ‘ » Fy = 2 ae 4 a i b ‘ws = . ‘ , “ . 9 : ud * LA ‘ | | = ee ee ee eee al PTI NINA Joon model ACRO FIZ i ww ha ’ ! » 4 ; : iN . * 7 | fi ii 89 = ee it i a’ Exceptional 7, be Db be bcd ad ict VALUE =f only i tel Coed bid’ PCATAGLE AIR praia dcal for medium-size bedrcoms. Operates on 115 velts. TAKE IF HOME TODAY 00 » R's only 20" wide, 12%" high... Ms In the trunk of yoor car, Mis neafly in your wi INSTALL IT YOURSELF .,. It hee sccordiontype side panels that unfold to interlock with the windew tors, installation is a mater ef minutes, SLEEP #8 COOL. CINET COMPORT.. .Feddera approssh fo seund ecn ‘rol Ic-> you enjoy your mid- warmer nie cts Fl Is, CET ALL THESE GAEAT FEATURES ... Mi and Le Cool, adjusinble m@eractic thermestal_fan-onty ©..@1..208 For thorn dvs when ud cos Jing isn't neeacd. Pics . exclusive E.c.erve Geciing Power? fer thosaextre hot, huqid eays; Fiush-Mount dee‘gn wiih bets youcilove- drepes;ictally eneiesed-mane-ciad cD net Wiel ehuucs ef! snow, rain, 8)! woather, Coe empire sed mame seubte-heng wir own Fir siding windeus wo WAR epfona! Mi arreb. “bate ee Lica S host So oF Cor alsasr 4 NOU OMLY AT... Phils 64 P hiladelp ha Inquecer _6Ads Begin 5-28-70 eo. = ‘ r eee ——_ - — ° ~ o f : ; > * | ey heieset er) Pr eee ss | i P it Se Cine nlite ovat Ni o : F -B3 56) EXCLUSIVE ANTI-POLLUTION OPTION 18,000 btw’s Heisitts = only kr Regular in-season price $349.95 Cater wathabie tater oth Gereces pgrtes il nae Capa tutee =} BUY NOW-—PAY LATER! ttl De — Qnty Fodder: gwes you the opter of Ge Medechs * 8 CG ) 25 suren speci FEATURES Feb. 26, 197" hyntvame artigee Quid TOO pure! ten —~ Torrens peste cee ot 6 athe mer mosial abearced 4 nay Ot Ore ce Corte” -" » we Ge Se + 0-8 458 Power* tor extra hot Mund Gays ~~. ————— —-— - —- ae 3-47-77 / 4a serTien +S BF “ Wa-y Ye . *e, ‘ ‘ 4 WV ~ 7 ; Sow Py * 3 ALS —“~ + a. =a _— , * f~* aw ) ~s=- ed —_——_— Y c Lr, "| > a . Ce a vy oe ° 4 ‘ ' (¢ Vom «+ er eee ‘4 Z 4 ° ot -—-—- fe S Re oe @& H I *- ~~ ~er fee aint ‘ ~ “ee © -20e -2= ® ' .- _—- . oe , 4 : e- oo oa) 4 — 4h = ; | . — rs enema 6! A oo —- i ts .? -_ oo oa P --- ~ o--mpee / —e =e ae ry — oe oer ee / ‘ 22+ eee ~~ = ' i ' —- ——-—- oa =» 2 -oces , we eer wm jf pty ent ——-4—4 > 4 . —_— ee oe _—_—— ooo =a => ~y4 - i i — ee oe ee ten om * “——-— oo oS ee ee ~-- OT le ~- * ee —— owe > —— . e Ss. —— —— ee © ee —_ , ed 6 2-a= == > - ee —- + - 2 * ‘ ~ al - pd ‘ > on : — ----—_- ~~ —_— - ‘ — 9 . —— “« eo ———o— le idl @ 22 ~ > +o = i —-_——~e ——_— - ooo > = = --o-~ = — , om rat 4 j ‘ —_———— — Oe a :.3 { : a ae “2 + . ———eet ee Oe —-« _—=—- all j Be se Im 7 o/ . / 4 C,660 cTU’s iS er rere 5 DY was en Sy atte Ce thermnata fanny UE eet em F ererve Coo 7 Fo. ert -or-. le s vou! © eure, o* totaly @nu.0 cd 2e-cled y vo a Mora EDDERS - world’s (srgest Selling air conditioner BEST COPY AVAILABLE fir 1% df c J5-¥-70 (7 ST. P27 ers Berg Fimwet --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_2268%3A1. Public record. Not legal advice.