Ford Motor Company, Ford Motor Credit Co. And Francis Ford, Inc. v. Federal Trade Commission

Francis Ford, Inc. petitions this court to review an F.T.C. order finding it in violation of § 5 of the F.T.C. Act, 15 U.S.C. § 45 (unfair trade practices). We have reviewed the petition, and set aside the order.

Francis Ford, Inc. is an Oregon automobile dealership. Its practice in repossessing cars has been to credit the debtor for the wholesale value of the car, charge him for indirect expenses (i. e., overhead and lost profits) as well as direct expenses (i. e., refurbishing) associated with repossession and resale, and sell the repossessed vehicle at retail keeping the “surplus.” In doing so, Francis Ford claims it is doing what is commonly done throughout its industry.

The F.T.C. does not approve of the described practice. Nor does it approve of a number of other credit practices now commonly in use in a wide variety of industries. See its investigations of the credit business, and its recent attempted rulemaking. In re Proposed Trade Regulation Rule: Credit Practices, 40 Fed.Reg. 16,347 (1975).

*1009 In order to attack Francis Ford’s practice, the F.T.C. began in 1976 an adjudicatory action against Ford Motor Co., Ford Credit Co., and Francis Ford, Inc. The commission…

dissenting from denial of rehearing en banc:

*1011 I dissent from the court’s refusal to rehear this case en banc. I believe the opinion creates unnecessary and undesirable confusion as to the state

I believe that our circuit would be better served if we did the necessary job ourselves. I think that it is our function to correct our errors in cases of general importance, especially when our decision conflicts with earlier binding precedent in our circuit and when we have failed to distinguish, or even discuss, that applicable precedent. The best way to do this is through our en banc process.

The panel explains its decision by stating “[ultimately, however, we are persuaded to set aside…

673 F.2d 1008 1981-2 Trade Cases 64,271 , 1982-1 Trade Cases 64,665 , 32 UCC Rep.Serv. 1 FORD MOTOR COMPANY, Ford Motor Credit Co. and Francis Ford, Inc., Petitioners, v. FEDERAL TRADE COMMISSION, Respondent. Nos. 79-7647, 79-7654. United States Court of Appeals, Ninth Circuit. Argued and Submitted May 5, 1981. Decided Aug. 24, 1981. Rehearing and Rehearing En Banc Denied April 5, 1982. Michael J. Esler, Esler & Schneider, Portland, Or., for petitioners. Ernest J. Isenstadt, F.T.C., Washington, D.C., for respondent. Petition for Review of the Order of the Federal Trade Commission. Before GOODWIN, KENNEDY and ALARCON, Circuit Judges. GOODWIN, Circuit Judge. 1 Francis Ford, Inc. petitions this court to review an F.T.C. order finding it in violation of § 5 of the F.T.C. Act, 15 U.S.C. § 45 (unfair trade practices). We have reviewed the petition, and set aside the order. 2 Francis Ford, Inc. is an Oregon automobile dealership. Its practice in repossessing cars has been to credit the debtor for the wholesale value of the car, charge him for indirect expenses (i. e., overhead and lost profits) as well as direct expenses (i. e., refurbishing) associated with repossession…