# Memorandum — Masiello v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_0606%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Memorandum - **Published:** January 1, 1972 - **Citation:** 406 U.S. 917 ## Text he . Supyom? a“ i 5 : preteen OURT a : ts - < a se | NA ah ak eee RRR 18 872 ad Boe aed mOHECL RODLK mR, (CLERK No. 71-1092 on the Supreme swe of the ited Sie | _OcroBer Tee, 1971 Svar OFrice: Bijan ‘COMPANY, ET AL., PETITIONERS " Vv. | FEperaL TRADE Comission _ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPRALS FOR THE SECOND CIRCUIT MEMORANDUM FOR THE FEDERAL TRADE O(MISSION '». IN OPPOSITION. ERWIN N. GRISWOLD, Solicitor General, Department of Justice, Washington, D.C. 20530. RONALD M. DIETRICH, ° i bE RZ: © General Counsel, Federdl Trade Commission, : Washington, D.c. ; ie gn the Supreme Gourt af the United Siti mn ~ OCTOBER TERM, 1971 - No. 71-1092 Star Orrice Suppty Company, ET AL., PETITIONERS = 3 Feperan ‘Trape Comission ON PETITION FOR A Ww RIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT | MEMORANDUM FOR THE FEDERAL TRADE COMMISSION IN ‘OPPOSITION -— ‘ 1. The Federal ° Trade Chaciieiion found that peti- tioners, Star Office Supply C ompany and its president, Henry Pinkwater, had engaged in unfair, false. mis- leading and deceptive practices in the sale of office supplies in violation of Section 5 of the Federal Trade Commission Act, 15 U.S.C. 45, and entéred a ten para- . graph cease-and-desist order (Pet, App. A 2, A 110-A - 112). The court of appeals affirmed from Se Leneh ~ without opinion (Pet. 5). The evidence showed that petitioners solicited orders for office supplies by telephoning ‘ ‘prospective pur-. ‘chasers and misrepresenting the nature of their busi- (1) 463-190—72 ‘ Cae IN ew UG aE eS - ness and their affiliations. Petitioners’ jobber-salesmen’ would frequently claim that they had. been recom- mended by another official of the prospect’s firm; that ‘they were attempting to liquidate a relative’s station- ery firm, and knew nothing of the business; and that they Were affiliated with organizations such as Radio Free Europe. None of these assertions was true. See -e.g., Pet. App. A 45-A 46, A 58-A 59, A ob-A 61, A 66-A 67. There was also consider ‘able vitienee that petition- ers deliberately shipped more merchandise to pur- chasers than had been ordered (see, ¢.g., Pet. App. A 50, A 51, A 53, A 56-A 57, A 66,-A 70-A 71, A 75, ‘A 88). Frequently, the price of goods would be billed at a higher amount than the purchaser had been led to expect (see e.g., App. A 55-A 56, A 83). Merchandise sold this way was often returned, but frequently a por- tion of the order would be inadvertently used, or re- tained, and paid for by the customer (App. A 51, A 53, A 56, A 57, A 60, A 73). The Commission’s order (App. A 110-A 112) di- rected petitioners to cease and desist such misrepre-_ sentations; to furnish purchasers with pre-shipment written notification as to the type, quantity and price of the supplies to be shipped (para. 7); not to deviate from the pre-shipment written notification unless upon express authorization of the purchaser (para. 8); and not te thwart cancellation of any orders obtained in violation of the cease and desist-order (para. 9). 2. Petitioners do not question the Commission’s finding that their sales practices were unfair and de- . ND SALTS LMR ERR OR EN 5 UR e te et oat AF ONAL ly ed PAREN NECTAR GRC bit NS wehbe MEDS! Mian 8 ag 1 Ay tance ae on LAN ENR RIS = ' 3 ceptive in violation of Section 5 of the k ederal Trade Commission Act; they contend only that paragraph 7 - of the order, requiring pre-shipment notification, was ‘improper (Pet. 2).-As this Court has repeatedly held, the Commission has broad authority to determine the type of order ‘‘necessary to cope with the unfair prac- | tices found.” Federal Trade Commission v. Colgate-. Palmolive Co., 380 U.S. 374, 392; Federal Trade (fommission v. Ruberoid Co., 343 +8. 470, 473. Unless the remedy selected “has no reasonable relation to the unlawful practices found to exist,’ the courts ‘will not interfere.’ Jacob Sicgel Co..v. Federal Trad Commission, 327 U.S. 608, 613. The remedy chosen here is r asonably related to petitioners’ practice of shipping larger qui: untities of merchandise than were ordered. As the Commission explained (Pet. App. A 8-A 9), pre-shipment notifi- cation will give customers ‘the opportunity to inform petitioners of any variations between what was or- dered and what petitioners intend to ship, and thus protect customers against excess shi} vient or increased prices. Indeed petitioners’ continued argument. in ak of “*[S]chlock’ pressure metliods of competitive selling” as “part of the enterprise energies in these fields of American business * * *** (Pet. 9, emphasis ‘in original) demonstrates the Commission’s wisdom in requiring a prophylactic vimele rather than a ‘mere order to desist. Contrary to petitioners’ assertion (Pet. 6), t Confmission’ s remedy here is not unique. The Fa mission has frequently required violators of Section 5 j 7) 4 to take affirmative steps before making a sale to en- sure that their customers are aware of the seller's _ obligations; such orders have uniformly been upheld by the courts. See, ¢.g., All-State Industrics of North Carolina, Inc. v. Federal Trade Commission, 423 F. 2d 423 (C.A.°4), certiorari denied, 400 U.S. 828; Port- wood v. Federal Trade Commission, 418 F. 24 419 (C.A. 10); § & S Pharmaceutical Co. v. Federal Trade Commission, 408 F. 2d 487 (C.A. 5). 3. Petitioners allege that paragraph 7 is aAfrastic remedy which will destroy their. business “‘within a very short time” (Pet. 8). Even assuming that pre- if need be, those businesses “‘which persist in prac- - .— ticing them.”’ Slough v. Federal Trade Commission, 396 F. 2d 870, 872 (C.A. 5). However, if the conditign proves too onerous peti- apply the Commission for relief. If that relief is denied, “must remember that those caught violating the Act must expect some fene-— in.” Federal Trade Commission v. National Lead Co., 352. U.S. 419, 431. | ' Petitioners have used a quite similar proredure (Pet A 99-4 9). ET | 5 ; For the foregoing reasons the petition for a writ of certiorari should be denied. | Respectfully submitted. . Enwis N. Griswow, | n Solicitor General. ~ ; Rowaty M. Dreraicn, General Counsel, © Federal Trade Commission. Aprit 1972. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_0606%3A3. Public record. Not legal advice.