909 F.2d 657 (1st Cir. 1990), 89-2156, United States v. Boch Oldsmobile, Inc.

Docket Nº:89-2156.
Citation:909 F.2d 657
Party Name:UNITED STATES of America, Plaintiff, Appellee, v. BOCH OLDSMOBILE, INC., Boch Toyota, Inc., and Ernest J. Boch, Defendants, Appellants.
Case Date:July 30, 1990
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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Page 657

909 F.2d 657 (1st Cir. 1990)

UNITED STATES of America, Plaintiff, Appellee,

v.

BOCH OLDSMOBILE, INC., Boch Toyota, Inc., and Ernest J.

Boch, Defendants, Appellants.

No. 89-2156.

United States Court of Appeals, First Circuit

July 30, 1990

Heard April 4, 1990.

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Mark E. Jacobson, with whom Jacobson Stromme & Harwood, P.A., Minneapolis, Minn., was on brief, for defendants, appellants.

Sharon I. Kurn, Atty., Office of Consumer Litigation, with whom Stuart M. Gerson, Asst. Atty. Gen., Wayne A. Budd, U.S. Atty. and Margaret A. Cotter, Asst. Director, Office of Consumer Litigation, were on brief, for plaintiff, appellee.

Before TORRUELLA, SELYA and CYR, Circuit Judges.

TORRUELLA, Circuit Judge.

This case arises out of the enforcement of the credit advertising provision of the Truth In Lending Act ("TILA"), 15 U.S.C. Sec. 1601 et seq., and Regulation Z, 12 C.F.R. Part 226. The action was filed by the Federal Trade Commission ("FTC") against appellants Boch Oldsmobile, Inc., and Boch Toyota, Inc. (collectively referred to as

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"Boch") under Sec. 5(m)(1)(B) of the Federal Trade Commission Act ("FTCA"). 15 U.S.C. Sec. 45(m)(1)(B). 1 Thereafter a consent decree was entered into, which appellants then sought to amend. This is an appeal from the denial by the district court of said request. We affirm this decision.

FACTS

Boch sells and services new and used motor vehicles and advertises accordingly. In 1983, FTC informed Boch of certain published advertisement violations of the TILA and Regulation Z credit advertising provisions. 2 In the notices sent to Boch the FTC pointed to Boch's failure to include certain credit terms in their credit sale advertisements. For example, terms for down payments and monthly payments were published without specifying the finance charge rate and the "annual percentage rate" or "A.P.R." When similar violations appeared in 1984 the FTC again sent Boch notices advising of these and prior advertisement violations. It also included a "synopsis package" that contained, among other items, four published decisions of the FTC involving proceedings brought under Sec. 5(m)(1)(B) of the Federal Trade Commission Act. 15 U.S.C. Sec. 45(m)(1)(B). When Boch failed to bring its advertising into compliance with the FTC's contentions, a civil suit was filed seeking both civil penalties and injunctive relief under section 5 of the FTCA. 15 U.S.C. Sec. 45.

The FTC based its action on the theory that receipt of the synopsis package gave Boch actual knowledge that the conduct which the FTC complained of had previously been determined to be unfair or deceptive acts or practices under the FTCA. Following a lengthy period of negotiations, Boch agreed to pay civil penalties in the amount of $35,000, to submit to certain injunctive relief, and to execute consent decrees. Accordingly, and without submitting any issues to trial, the district court entered final judgments pursuant to the consent decrees on April 29, 1986. The penalties were paid by Boch as agreed.

On July 14, 1989, three years after the judgment was entered, Boch served and filed a motion to amend the consent decrees. The motion was based on the Court of Appeals for the Eighth Circuit decision in United States v. Hopkins Dodge Sales, Inc., 849 F.2d 311 (8th Cir.1988), in which it was concluded that the synopsis package sent by the FTC did not constitute the necessary determination or showing of unfair or deceptive acts or practices required by the statute. 15 U.S.C. Sec. 45(m)(1)(B).

On September 7, 1989, the district court, without a hearing, denied defendants' motion to amend the consent decrees. The district court held that there was nothing misleading or unfair which would warrant amendment of a consent decree entered into over three years before, and which had been carefully, fairly and openly negotiated by competent parties and counsel prior to its approval.

Despite the multiple pleadings presented by appellants, the issues actually presented by this appeal are narrow. In order to determine whether the district court properly denied appellants' motion, this court

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will examine whether Boch's motion for relief from the final judgment request was timely, and then whether the judgment entered was void.

STANDARD OF REVIEW

The decision to grant or deny a motion for relief from a final judgment is committed to the sound discretion of the trial court. Anderson v. Cryovac, Inc., 862 F.2d 910, 923 (1st Cir.1988). Accordingly, the district court's decision should be reversed only upon a showing that the trial judge's ruling manifested an abuse of discretion. Conway v. Electro Switch Corporation, 825 F.2d 593, 597 (1st Cir.1987). This...

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