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ODESSKY v. FTC

May 22, 1979

Don ODESSKY et al., Plaintiffs,
v.
The FEDERAL TRADE COMMISSION et al., Defendants



The opinion of the court was delivered by: GASCH

MEMORANDUM

This is a complaint for declaratory and injunctive relief and money damages against the Federal Trade Commission ("FTC" or "Commission") and seven present or former officials and attorneys of the Commission, who are sued in their individual and official capacities. Plaintiffs are Don Odessky, his wife Natalie, and Don Odessky, Inc., a California marketing firm of which Mr. Odessky is president. Plaintiffs contend that defendants have committed unconscionable, arbitrary, and illegal acts, representing an abuse of public office and constituting the intentional tort of bureaucratic harassment of a small businessman. Upon consideration of the pleadings and the arguments of counsel, the Court concludes that, for the reasons stated below, this action should be dismissed for failure to state a claim upon which relief can be granted.

 FACTUAL BACKGROUND

 In early 1970 Plaintiff Don Odessky requested an advisory opinion from the FTC regarding the legality and propriety of his planned marketing business, which involved promotional displays of small food suppliers' products in end-of-aisle stands in grocery stores. *fn1" Any person, partnership, or corporation may request advice from the Commission with respect to a course of action that the requesting party proposes to pursue and the Commission, where practicable, will inform the requesting party of the Commission's views through what is popularly known as an advisory opinion. 16 C.F.R. § 1.1 (1978). The FTC will not proceed against the requesting party with respect to any advice taken in good faith reliance upon an advisory opinion, when all relevant facts were fully, completely, and accurately presented to the Commission and when such action was promptly discontinued upon notification of recision or revocation of the Commission's approval. Id. § 1.3(b).

 Mr. Odessky received a favorable advisory opinion letter on April 6, 1970, and began his marketing operation. In October, 1973, however, the advisory opinion was revoked on the ground that it was not in conformity with the FTC's Guide for Advertising Allowances and Other Merchandising Payments and Services (as amended August 4, 1972). *fn2" Eleven other advisory opinions dealing with comparable merchandising plans were revoked at the same time.

 Mr. Odessky sought the assistance of his congressman to challenge the FTC's action and to obtain a new advisory opinion and during the next two years numerous inquiries were made and correspondence exchanged regarding the matter. *fn3" On January 26, 1976, Mr. Odessky was informed that the FTC had issued a revised advisory opinion, approving his modified promotional plan. This advisory opinion was conditioned, however, on the requirement that Mr. Odessky file a yearly written report regarding the operation of his business. Mr. Odessky filed the first such report with the FTC on January 29, 1977. *fn4"

 In June, 1977, Mr. Odessky received a letter from the FTC indicating that the reporting requirement imposed by the advisory opinion had not been satisfied and requesting him to provide additional information, including the names of suppliers and retailers who participated in his program. Following discussions with the FTC, plaintiff refused to provide this information, citing the harmful effects of adverse publicity and the possible subjection of his clients to burdensome reporting requirements. He claimed that his business would be irreparably damaged by disclosure of this information, thereby resulting in a deprivation of liberty and property in violation of the fifth amendment.

 On June 30, 1978, the FTC notified Mr. Odessky that it had initiated a formal investigation into the activities of Don Odessky, Inc. to determine whether the company may be engaged in unfair methods of competition or in unfair or deceptive acts or practices in violation of section 5 of the Federal Trade Commission Act, 15 U.S.C. § 45 (1976). Specifically, the Commission expressed its concern that suppliers might be involved in illegal discriminatory practices in furnishing promotional allowances or other services to retailers through Don Odessky, Inc. *fn5" The notice of formal investigation also renewed the FTC's request for information regarding the identity of suppliers and retailers, and the amount of promotional allowances.

 Plaintiffs filed the present lawsuit on December 14, 1978, alleging harassment, intimidation, and other illegal acts. The complaint seeks a preliminary and permanent injunction to prevent the FTC from taking any further action with respect to Don Odessky, Inc. until resolution of the lawsuit, as well as $ 7.2 million in compensatory and punitive damages.

 On January 11, 1979, the FTC notified Mr. Odessky that it was revoking the 1976 advisory opinion. Plaintiff sought a temporary restraining order to prevent this revocation, but was unsuccessful in this regard. Other legal efforts to prevent revocation similarly failed. *fn6" The issues are presently before the Court on plaintiffs' motion for a preliminary injunction and defendants' motion to dismiss. *fn7"

 MERITS

 Because likelihood of success on the merits is a prerequisite to obtaining a preliminary injunction, *fn8" it is appropriate first to consider the issues raised by defendants' motion to dismiss, which alleges that the Court lacks jurisdiction over the subject matter of this complaint and that service of process on the individual defendants was insufficient.

 Plaintiffs have pleaded six jurisdictional bases for their complaint: the Declaratory Judgment Act, *fn9" mandamus, *fn10" the Administrative Procedure Act, *fn11" the Federal Tort Claims Act, *fn12" section 1985, *fn13" the fifth amendment, and the Bivens doctrine. *fn14" Defendants contend that none of these constitutional or statutory provisions provide jurisdiction in the present case. Plaintiffs' written opposition to the motion to dismiss addressed only the question of jurisdiction under the Bivens doctrine and at oral argument plaintiffs' counsel appeared to concede that none of the other bases of jurisdiction are applicable, a conclusion with which the Court agrees.

 Defendants challenge the applicability of the Bivens doctrine, arguing that the fifth amendment does not support an implied constitutional cause of action and, even if it did, the governmental conduct challenged in this case does not rise to the level of a constitutional violation. In Bivens the Supreme Court recognized a private right of action for money damages for violations by federal officials of constitutional rights protected by the fourth amendment. 403 U.S. at 397, 91 S. Ct. at 2005. There has been some judicial ...


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