United States v. Hindman

• Decision Date: 15 January 1960
• Docket Number: Civ. A. No. 450-59.
• Citation: 179 F. Supp. 926
• Parties: UNITED STATES of America, Plaintiff, v. Seymour S. HINDMAN, Defendant.
• Court: U.S. District Court — District of New Jersey

179 F. Supp. 926

UNITED STATES of America, Plaintiff, v. Seymour S. HINDMAN, Defendant.

Civ. A. No. 450-59.

United States District Court D. New Jersey.

January 15, 1960.

Chester A. Weidenburner, Newark, N. J., U. S. Atty., by Harold Weideli, Jr., Asst. U. S. Atty., Rahway, N. J., for plaintiff.

Aaron B. Weingast, Irvington, N. J., for defendant.

HARTSHORNE, District Judge.

The defendant is in the business of selling military uniforms to military personnel. On March 13, 1957, after a hearing under the Federal Trade Commission Act, as amended, 15 U.S.C.A. §§ 41-58, wherein the defendant was charged with violating Section 5(a) of the Act, as amended, 15 U.S.C.A. § 45 (a), the Commission issued a cease and desist order against the defendant, and others, which was duly served on the defendant on March 21, 1957. This order provided, as far as pertinent:

"It is ordered that * * * Seymour S. Hindman * * * directly or through any corporate or other device in connection with the offering for sale, sale, or distribution of military clothing in commerce * * * do forthwith cease and desist from representing, directly or indirectly: * * * that the military clothing offered for sale or sold, or any of it, is custom made * * *"

The defendant admits that thereafter he made certain sales of military clothing in commerce and that the uniforms so sold bore the label "custom-tailored." Accordingly, plaintiff Government filed its civil complaint to recover the civil penalties for such violations as provided by the above statutes. After answer filed, plaintiff and defendant each thereupon moved for summary judgment, these motions having been duly heard.

There having been no appeal from the above cease and desist order, it stands as res judicata. United States v. Willard Tablet Co., 7 Cir., 1944, 141 F.2d 141, 152 A.L.R. 1194; United States v. Piuma, D.C.S.D.Cal.1941, 40 F.Supp. 119, affirmed 9 Cir., 1942, 126 F.2d 601, certiorari denied, 1942, 317 U.S. 637, 63 S.Ct. 28, 87 L.Ed. 513.

The defendant now concedes that he was engaged in commerce as defined in the statute and withdraws his Fifth Affirmative Defense, except as it may apply to the mitigation of damages.

However, the defendant makes two points in support of his motion for summary judgment, (1) that he made no representation whatever subsequent to the entry and service of such cease and desist order, i. e., that the label on the uniforms sold could not constitute a representation of any kind, and (2) even if such label constituted a representation, the meaning of the representation that such uniforms were "custom-tailored" substantially differed from the forbidden representation that such uniforms were "custom-made."

As to the first point, it should be noted that not only is the defendant ordered to cease and desist from making the forbidden representation, either "directly or indirectly", but that such representation is forbidden in connection either with the "offering for sale * * of military clothing", or with the "sale * * * of military clothing", or with the "distribution of military clothing." In other words, the defendant is required to cease and desist from making the forbidden representation not only in connection with the entry into the contract for the purchase and sale of the uniforms, and this either directly or indirectly, but he is also forbidden to make such representations in connection with the actual sale and also in connection with the distribution of the military clothing. Obviously, if the placing of a label on a...