James H. Sewell, Doing Business Under the Fictitious Firm Name and Style of Burns Cuboid Company v. Federal Trade Commission

240 F.2d 228 James H. SEWELL, doing business under the fictitious firm name and style of Burns Cuboid Company, Petitioner, v. FEDERAL TRADE COMMISSION, Respondent. No. 14354. United States Court of Appeals Ninth Circuit. Oct. 16, 1956. Maury, Larsen & Hunt, George R. Maury, Los Angeles, Cal., for petitioner. Earl W. Kintner, Gen. Counsel, Robert B. Dawkins, Asst. Gen. Counsel, Alvin L. Berman, Atty., F.T.C., Washington, D.C., for respondent. Before POPE, FEE and CHAMBERS, Circuit Judges. CHAMBERS, Circuit Judge. 1 Sewell, petitioner here, and respondent before the Federal Trade Commission, has successfully built in and from Santa Ana, California, a large business in the manufacture and sale of an article which we can call a shoe insert. Its basic name is Cuboids. This is a derivation from the cuboid bone in the arch of the human foot. Various names are used in marketing like 'Cuboid balancer' or 'Doggies.' A ready market for the device is found among the legion of Americans who complain about their feet. 2 The insert is ordinarily sold in department stores in metropolitan centers where representatives on the payroll of Sewell sell the product, usually for the account of…

I dissent. It seems to me clear that the court has assumed a power which it does not have and has meddled in a decision which it is not authorized to make. In Federal Trade Commission v. Algoma Co., 291 U.S. 67, 73 , 54 S.Ct. 315, 318 , 78 L.Ed. 655 , the Supreme Court described what has happened here in language which could not be more apt if it had been spoken concerning this very case. Said the Supreme Court: “ ‘The findings of the Commission as to facts, if supported by testimony, shall be conclusive.’ 15 U.S.C. § 45 ( 15 U.S.C.A. § 45 ). The Court of Appeals, though professing adherence to this mandate, honored it, we think, with lip service only. * * * In fact what the court did was to make its own appraisal of the testimony, picking and choosing for itself among uncertain and conflicting inferences. Statute and decision (Federal Trade Commission v. Pacific States Paper Trade Ass’n, 273 U.S. 52, 61, 63 , 47 S.Ct. 255 , 71 L.Ed. 534 ) forbid that exercise of power.” This is a clear case in which the majority of the court stepping into the shoes of the Commission, have undertaken to say how they would decide it. The clue to their fundamental error is to be found in the last…

Sewell, petitioner here, and respondent before the Federal Trade Commission, has successfully built in and from Santa Ana, California, a large business in the manufacture and sale of an article which we can call a shoe insert. Its basic name is Cuboids. This is a derivation from the cuboid bone in the arch of the human foot. Various names are used in marketing like “Cuboid balancer” or “Doggies.” A ready market for the device is found among the legion of Americans who complain about their feet.

The insert is ordinarily sold in department stores in metropolitan centers where representatives on the payroll of Sewell sell the product, usually for the account of Sewell, rather than the department store. Those who sell it have had some training in fitting shoes and selling corrective devices. Some sales are made by mail order after a customer has filled out a questionnaire which is intended to elicit his complaints. Some sales are made by stores that do not have a Sewell representative on the premises.

The insert is made on a license from an inventor named Burns, who apparently first marketed the device himself on a limited basis. The article moves in commerce among the states. There…

(concurring).

In view of the fact that a dissent is to be filed, the following may add clarity to our determination.

The right of the people who buy shoes and have individual ideas in respect to comfort, poise, balance and posture is involved here. It is not a contest between a selfish seller and an administrative body. Insofar as purely scientific and medical claims are concerned, the Commission is fully supported by this Court. In such a field, where experimentation might be dangerous, perhaps the individual must be protected against himself. It is an extremely close question as to whether a situation existed which justified the elimination of such claims here. However, as to the scientific and medical phases of the findings of the Commission, although these are based upon testimony of experts, this Court has given full concurrence to the results reached. 1 Where almost every individual in the nation passes, perhaps once, perhaps many times a year, through the hands of shoe salesmen, balance, poise, posture and comfort are, in essential, the bases of the sales. In regard to these matters, the individual exercises his own ideas. Even an expert, whether a doctor, a witness for…