Sears, Roebuck and Co., a Corporation v. Federal Trade Commission

Petitioner Sears, Roebuck and Co. is the largest retailer of general merchandise in the U nited States. As such, it is also one of the country’s largest advertisers. This case presents a number of questions relating to the validity of a multi-product order issued by the Federal Trade Commission (the Commission) as the result of Sears’ use of certain unfair and deceptive advertising practices to sell one of the products in the product group. We enforce the order.

I

THE ADVERTISEMENTS AND THE COMMISSION PROCEEDINGS

The material facts are undisputed. In the early 1970’s Sears formulated a plan to increase sales of its top of the line “Lady Kenmore” brand dishwasher. The plan did not call for reengineering of the dishwasher *387 or any mechanical improvement. Rather, it contemplated changing the image of the Lady Kenmore, or, in the jargon, it sought a “repositioning” of the machine. The objective was to:

To achieve this objective, the company needed a sales strategy. Like any good merchant, Sears knew its market. It knew that a machine that would actually perform the entire job of washing dishes and would eliminate the need for people to pre-rinse and pre-scrape their dishes…

dissenting:

Aside from any due process considerations that may be involved in refusing to admit and consider Sears’ proffered evidence relating to petitioner’s advertising of major home appliances other than dishwashers, I would remand with instructions to reopen the proceedings to permit Sears to present its evidence attempting to delimit the broad products order entered in this case.

Recognizing the broad discretion vested in the ALJ and the Commission in the reception and rejection of offered evidence, I am nevertheless compelled by ordinary everyday principles of fair play to the conclusion that this broad discretion was abused in this case. I am persuaded that the offered evidence was relevant to the issues and ought to have been received and considered. For this reason, I would not reach the other issues at this time.

On this narrow ground, I respectfully dissent.

676 F.2d 385 1982-2 Trade Cases 64,752 SEARS, ROEBUCK AND CO., a corporation, Petitioner, v. FEDERAL TRADE COMMISSION, Respondent. No. 80-7368. United States Court of Appeals, Ninth Circuit. Argued and Submitted June 9, 1981. Decided May 6, 1982. Francis R. Kirkham, Richard J. MacLaury, George A. Sears, San Francisco, Cal., for petitioner. Ernest Isenstadt, F. T. C., Washington, D. C., for respondent. On Petition to Review an Order of the Federal Trade Commission. Before DUNIWAY, ANDERSON and REINHARDT, Circuit Judges. REINHARDT, Circuit Judge: 1 Petitioner Sears, Roebuck and Co. is the largest retailer of general merchandise in the United States. As such, it is also one of the country's largest advertisers. This case presents a number of questions relating to the validity of a multi-product order issued by the Federal Trade Commission (the Commission) as the result of Sears' use of certain unfair and deceptive advertising practices to sell one of the products in the product group. We enforce the order. 2 * THE ADVERTISEMENTS AND THE COMMISSION PROCEEDINGS 3 The material facts are undisputed. In the early 1970's Sears formulated a plan to increase sales of its top of the line…