Johanna Kipperman v. Academy Life Insurance Company

Plaintiff-appellant Kipperman, through her father, seeks to establish a private right of action under 39 U.S.C. § 3009 . Section 3009 makes the mailing of unsolicited “merchandise” a per se unfair trade practice actionable by the Federal Trade Commission. Under section 3009(b), the recipient of unsolicited “merchandise” may treat the item received as a gift. The district court found there was no implied private right of action and dismissed. While we agree that the action should be dismissed, we believe the district court erred in holding that no implied private right of action exists. Thus, we affirm the dismissal of the action on grounds developed hereafter.

I.

Facts.

Academy Life mailed Kipperman and others unsolicited promotional materials concerning their “Student Protection Policy.” These materials included what appears to be a fully executed term insurance policy stating a face value of $2,000. The recipient’s name and address were printed by computer on the face of this “policy.” At the bottom of this “policy” was a tear-off application form indicating a PREMIUM AMOUNT NOW DUE of $9.00. The application form and an accompanying brochure indicated coverage could…