Colligan v. Activities Club of New York, Ltd., 100

• Citation: 442 F.2d 686
• Decision Date: 06 May 1971
• Docket Number: No. 100,Docket 34737.,100
• Parties: Jo Ann COLLIGAN, by her mother and next friend, Josephine G. Colligan, and Valerie Shine, by her father and next friend, William Shine, on behalf of themselves and all those similarly situated, Plaintiffs-Appellants, v. ACTIVITIES CLUB OF NEW YORK, LTD., also known as New York Winter Ski Club, a corporation; Fred Krasny; Mrs. Albert; Peninsula Bus Company, Inc., a corporation; and B and C Bus Line, Inc., a corporation, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

442 F.2d 686 (1971)

Jo Ann COLLIGAN, by her mother and next friend, Josephine G. Colligan, and Valerie Shine, by her father and next friend, William Shine, on behalf of themselves and all those similarly situated, Plaintiffs-Appellants, v. ACTIVITIES CLUB OF NEW YORK, LTD., also known as New York Winter Ski Club, a corporation; Fred Krasny; Mrs. Albert; Peninsula Bus Company, Inc., a corporation; and B and C Bus Line, Inc., a corporation, Defendants-Appellees.

No. 100, Docket 34737.

United States Court of Appeals, Second Circuit.

Argued October 8, 1970.

Decided May 6, 1971.

Jack Greenberg, New York City (Eric Schnapper, New York City, of counsel), for plaintiffs-appellants.

Sidney J. Leshin, New York City, for defendants-appellees.

Before MOORE, SMITH and ANDERSON, Circuit Judges.

MOORE, Circuit Judge:

This is an appeal from an order dismissing appellants' class action for money damages, an accounting for profits and an injunction brought under § 43(a) of the Lanham Act,¹ on the ground that their claim failed to state a cause of action. The district court ruled on its own motion that the suit could not be maintained, because, as consumers, as opposed to commercial plaintiffs, appellants lacked standing to sue under § 43(a). Without the benefit of any opposition on appeal to appellants' counsel's able brief, which sets forth the issues with beguiling simplicity, for the reasons stated below we nevertheless affirm.

FACTS

The two appellants, parochial school children, by their parents and next friends, brought this suit on behalf of themselves and as members of two classes: (1) 153 students of the Sacred Heart Academy of Hempstead, New York, who allegedly were deceived and damaged by "defendants' use of false descriptions and representations of the nature, sponsorship, and licensing of their interstate ski tour service";² and (2) all high school students within the New York metropolitan area who are likely to be deceived and thereby injured by defendants' similarly deceptive practices in the future. The factual substance of the complaint is summarized below.

Appellants and their 151 classmates prepaid defendant Activities Club of New York, Inc. (the Club), $44.75 per person as the full price for a ski tour to Great Barrington, Massachusetts to be conducted during the weekend of January 24, 1970, in reliance upon the Club's representations that: each child would be provided with adequate ski equipment and qualified instruction; safe, reliable and properly certified transportation would be provided between New York and Great Barrington; and all meal costs would be included in the prepaid tour price.³ These representations were conveyed by means of flyers, allegedly deceptively similar to those of National Ski Tours, a well known and reputable ski service, and by means of other written and oral communications.

The ski weekend began as represented but was cut short and proved otherwise unsatisfactory by the following developments, which for purposes of reviewing the dismissal of a complaint we assume to be true: only 88 pairs of skis and boots were provided for the 153 children; only one "qualified" ski instructor was provided, who because of the equipment shortage spent all of Saturday morning fitting the children with such skis and boots as were available; the other "instructors" were high school and college students whose agreements with defendants provided for only a few hours of instruction per day; one of the buses broke down on a country road en route to Great Barrington, stranding 40 children and two chaperones in the middle of the night; another bus had faulty brakes and only one headlight and was ticketed by the Massachusetts police; another bus en route back to New York poured exhaust fumes into its interior; one of the bus drivers was intoxicated and therefore unable to drive his bus on the return trip to New York; neither the buses nor the Club were licensed or certified by the Interstate Commerce Commission; and one busload of children was required to pay an unrefunded total of $71.75 for an extra meal in Great Barrington due to unsafe bus transportation.

In seeking redress of this apparently misfortune-strewn ski weekend brought about by the Club's misrepresentations, appellants have sought to invoke the jurisdiction of a federal court, rather than turning to traditionally available state court forums and remedies and have appended their state common law claims by way of invoking the doctrine of pendent jurisdiction. Seemingly unable to bring themselves within other federal statutes specially conferring federal court jurisdiction, and additionally unable to meet the minimum monetary requirements of 28 U.S.C. § 1331 or 28 U.S.C. § 1332, appellants imaginatively have brought this action pursuant to §§ 39⁴ and 43(a) of the Lanham Act.

The issue of consumer standing to sue under § 43(a) is one of first impression for this and apparently any federal court. In concluding that it lacked jurisdiction, the district court below relied on Marshall v. Proctor & Gamble Mfg. Co.,⁵ which in turn relied without discussion on this court's per curiam opinion in the first reported § 43(a) case, Carpenter v. Erie R. Co.⁶ Because both these cases are clearly distinguishable from the issue at bar,⁷ and therefore not conclusive authority for the district court's position, we find it necessary to explore in detail whether there is any basis for appellants' standing to sue under §§ 39 and 43(a).

SECTION 43(a) AND "PLAIN MEANING"

Appellants' principal contention is that the language of § 43(a), specifically the term "any person," is so unambiguous as to admit of no other construction than that of permitting consumers the right to sue under its aegis. On the face of the complaint all the prerequisites of § 43(a) seem to be met: (1) defendants are persons (2) who used false descriptions and misrepresentations (3) in connection with goods and services, (4) which defendants caused to enter commerce; (5) appellants are also persons (6) who believe themselves to have been in fact damaged by defendants' misdescriptions and misrepresentations.

Viewing the terms of § 43(a) in isolation there do not appear to be any vague words or inconsistent phrases which might permit any other inference than that which appellants would have us draw — i. e., that "any person" means exactly what it says.⁸ It is further suggested that if Congress had desired, it could and would have limited or narrowed the class of protected plaintiffs to commercial parties merely by saying so. We reject this line of maxims of statutory construction in favor of Judge Learned Hand's more practical instruction that "words are not pebbles in alien juxtaposition,"⁹ and therefore turn first to § 43(a)'s legislative history.

LEGISLATIVE HISTORY

We agree with appellants that "the Lanham Act of 1946 has a very long and convoluted legislative history,"¹⁰ which with respect to § 43(a) we find to be inconclusive and therefore of little or no help in resolving the issue decided today. We are cited by counsel to certain statements, actions and inactions and are asked to make certain causal connections among them and then to draw a set of preferred inferences therefrom. Counsel lay stress, for example, on the following statement made before a joint congressional committee in 1925 by a representative of the U. S. Trademark Association with respect to the language of a bill's provision, which, in substantially modified form, became § 43(a):

"It provides that any person who is damaged by the false description may start the suit. Obviously the purchaser might claim that he has been misled and damaged and start suit. At any rate, if it is intended to limit the right to start such a suit, that limitation should be stated."¹¹

None of the committee members or draftsmen of § 30 of the 1925 bill expressed any disagreement with this statement, and the provision remained unchanged, containing no express limitation barring consumer suits.

We are asked to conclude from this ancient history that the committee's silence, followed by its inaction with respect to amending this portion of the bill, must mean that Congress clearly intended to create standing for consumers under the 1946 Act. On this flimsy record, it would be self-serving for us to invoke the doctrine of "silence as acceptance" as a basis upon which to draw any consequential inference with respect to § 43(a)'s legislative history.¹² We believe it more likely that the committee members evidenced no disagreement or agreement with the interpretation given § 30 by the above-quoted statement because neither was necessary; the committee members probably were sufficiently confident of their own interpretation that they felt that no clarification by way of reply and/or amendment was needed to implement their intention to confer standing solely upon commercial plaintiffs.

It is also suggested that since the statutory predecessor of § 43(a), § 3 of the Trademark Act of 1920,¹³ was addressed solely to the prohibition of false designations of origin and authorized suit only by persons, corporations, etc., "doing business in the locality falsely indicated as that of origin emphasis supplied,"¹⁴ and since this type of language was preserved in several early drafts of what became § 43(a)¹⁵ but was ultimately dropped by the A.B.A. Trade-Mark Committee in favor of a provision permitting suit by "any person, firm or corporation who is or is likely to be damaged by the use of any false description or representation,"¹⁶ we should conclude that the A.B.A. rejection of the earlier colorably restrictive language and the congressional acceptance of the colorably broader A.B.A. language "clearly indicates an intent attributable to Congress¹⁷ not to restrict the provision to actions by businessmen and tradesmen," and "a congressional concern to expand the class and type of person authorized to sue."¹⁸ We, on the other hand, construe...