Grolier Incorporated v. Federal Trade Commission

dissenting.

I respectfully dissent, believing that Grolier was entitled to a confrontation by way of deposition with respect to its not-unreasonable concern that Administrative Law Judge von Brand’s official position had been sufficiently close to the historical litigation of the case as to raise questions concerning his suitability for adjudication.

In Grolier I we rejected the contention that mere contemporaneity of tenure during prior litigation called for disqualification. The majority correctly adverts to this ruling. But I question whether having to proceed in the light of Judge von Brand’s prior relationship as attorney-advisor for eight years during former Commissioner MacIntyre’s tenure would not cause the average litigator to be very apprehensive when that attorney-advisor now sits on the issues with which his principal had dealt. Normally we would test any basis of conflict by the “engine” of cross-examination. A deposition with face to face questions and answers would permit such testing; an already-prepared affidavit provides no similar satisfaction.

Grolier’s conduct of the litigation has left some tension in feelings but I believe a deposition could be kept…

Grolier, Incorporated [Grolier] petitioned for review of a cease and desist order of the Federal Trade Commission [FTC] respecting certain of its sales and recruiting practices. Petitioner is engaged in the door-to-door and mail order sale of encyclopedias and other reference publications. This case was before us once before and we remanded to the FTC to reconsider whether the administrative law judge [ALJ] should be disqualified and whether Grolier should be granted additional discovery on the subject of such disqualification. Grolier, Inc. v. FTC, 615 F.2d 1215 (9th Cir.1980) [Grolier n

The issues presented by this petition are (1) whether the Commission on remand was correct in declining to disqualify ALJ von Brand and refusing to allow the taking of his and others depositions; (2) whether the FTC order is reasonably related to Grolier’s deceptive and misleading commercial practices; and (3) whether the Commission abused its discretion by proceeding against Grolier through adjudication rather than by fashioning rules or standards for the entire industry.

THE DISCOVERY/DISQUALIFICATION ISSUE

Prior to his appointment as an ALJ, von Brand served as an attorney-advisor to former…

699 F.2d 983 1982-83 Trade Cases 65,213 GROLIER INCORPORATED, et al., Petitioners, v. FEDERAL TRADE COMMISSION, Respondent. Nos. 82-7018, 82-7178. United States Court of Appeals, Ninth Circuit. Argued and Submitted Sept. 14, 1982. Decided Feb. 10, 1983. As Amended March 2, 1983. Frederick P. Furth, San Francisco, Cal., for petitioners. David C. Shonka, Washington, D.C., for respondent. 1 On Petition For Review of an Order of the Federal Trade Commission. 2 Before KILKENNY and POOLE, Circuit Judges, and D. WILLIAMS * , Senior District Judge. 3 DAVID W. WILLIAMS, Senior District Judge. 4 Grolier, Incorporated [Grolier] petitioned for review of a cease and desist order of the Federal Trade Commission [FTC] respecting certain of its sales and recruiting practices. Petitioner is engaged in the door-to-door and mail order sale of encyclopedias and other reference publications. This case was before us once before and we remanded to the FTC to reconsider whether the administrative law judge [ALJ] should be disqualified and whether Grolier should be granted additional discovery on the subject of such disqualification. Grolier, Inc. v. FTC, 615 F.2d 1215 (9th Cir.1980) [Grolier I ]. 5 The…