Book-of-the-Month Club v. Federal Trade Commission, 139

• Citation: 202 F.2d 486
• Decision Date: 10 February 1953
• Docket Number: No. 139,Docket 22429.,139
• Parties: BOOK-OF-THE-MONTH CLUB, Inc. et al. v. FEDERAL TRADE COMMISSION.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

202 F.2d 486 (1953)

BOOK-OF-THE-MONTH CLUB, Inc. et al. v. FEDERAL TRADE COMMISSION.

No. 139, Docket 22429.

United States Court of Appeals Second Circuit.

Argued January 15, 1953.

Decided February 10, 1953.

COPYRIGHT MATERIAL OMITTED

George M. Wolfson and Cuthbert B. Caton, New York City (Wolfson, Caton & Moguel, New York City, of counsel), for petitioners.

W. T. Kelley, Robert B. Dawkins and Alan B. Hobbes, Washington, D. C., for respondent.

Before AUGUSTUS N. HAND, CHASE and FRANK, Circuit Judges.

FRANK, Circuit Judge.

We feel obliged by Federal Trade Commission v. Standard Education Society, 302 U.S. 112, 58 S.Ct. 113, 82 L.Ed. 141, to deny the relief sought by petitioners and to hold that the Commission's order must stand. In that case, this court was reversed. We had said that, to the discharge of its duty, the Commission should not "bring a pedantic scrupulosity; too solicitous a censorship is worse than any evils it may correct, and a community which sells for profit must not be ridden on so short a rein that it can only move at a walk. We cannot take seriously the suggestion that a man who is buying a set of books and a ten years' `extension service,' will be fatuous enough to be misled by the mere statement that the first are given away, and that he is paying only for the second. Nor can we conceive how he could be damaged were he to suppose that that was true. Such trivial niceties are too impalpable for practical affairs, they are will-o'-the-wisps, which divert attention from substantial evils."¹ But the Supreme Court held we were mistaken, saying, 302 U.S. at page 116-117, 58 S.Ct. at page 115: "The fact that a false statement may be obviously false to those who are trained and experienced does not change its character, nor take away its power to deceive others less experienced. * * * It was clearly the practice of respondents through their agents * * * to mislead customers into the belief that they were given an encyclopedia, and that they paid only for the loose leaf supplement."

1. We regret that we perceive no legally significant difference between the pivotal facts of that case and those of the instant case. The crucial factor here is that the Book-of-the-Month Club typically publishes an advertisement which states in large print at the top, "Free * * * to new members of the Book-of-the-Month Club" a copy of some designated book. This advertisement contains, at the bottom and in much smaller print, a coupon which, when signed and sent to the Club, constitutes a contract between it and its new "member"; this coupon states that he is to "receive free" the designated book, and that he agrees "to...