California Apparel Creators v. Wieder of California, Inc. ( 1947 )

L. HAND, Circuit Judge

(dissenting):.

As I. understand my brothers, they do not dissent from the doctrine, which we laid down in Ely-Norris Safe Co. v. Mosler Safe Co.,¹ and which the Supreme Court did not disturb upon the appeal, though they disagreed with our reading of the bill of complaint.² That doctrine is that it is untrue to say that a person aggrieved can never have protection against a competitor’s false attribution of geographical origin to his goods, or his false description of their quality or character. We held that such false advertising will always be an actionable wrong, if the plaintiff can show that it has in fact diverted customers from him. The plaintiffs’ difficulty in the case at bar, if it ever came to trial, would be to show that the defendants’ attribution to their goods of a false geographical origin did divert customers from them. That would be indeed difficult to prove, so difficult that, if it were necessary in addition to prove how much any one of them had lost in dollars and cents, I think I should go along with the decision we are making. However, it would not be necessary for them to make that proof in order to get an injunction; personally I should be satisfied, if any one of them proved that the defendants’ advertisements had diverted, or would divert, his customers. If he did so, I should enjoin the defendants from continuing to get customers that way, just as I should enjoin them from getting customers by any other fraud.

Moreover, I should go further. This, I agree, is a “spurious” class action under Rule 23(a) (3); I also agree that the California Apparel Creators Inc. has no standing to complain. However, there are seventy-five individual merchants who have joined as plaintiffs; and it well may be that collectively they could prove that some of them must have lost, or were losing, customers by the advertisements, although they could not identify the individual sufferers. That would be enough to my mind to support an injunction in favor of all the seventy-five against the defendants; and my justification is this. By hypothesis the defendants are injuring some one or more of the group; and he or they would get an injunction, if they could be ascertained; the others are not so entitled only because they have not been able to prove that they do not as yet need one. Faced with a choice between denying any remedy to those to whom a remedy is due, and extending it to those who do not need it, I should not hesitate. It seems to me that the joinder now allowed under Rule 23(a) (3) may, and should, be read to accomplish such a change in addition to allowing several actions to be tried at once.

We are affirming a summary judgment cutting off the plaintiffs from any trial because they have not been able in their affidavits to make out a prima facie case. I cannot agree to that. In trials of this kind the issues are as vagrant and vague almost, if not quite, as in prosecutions under the Anti-Trust Acts. In all cases where the fraud is not stark and bare, the issue tried is how an indefinite number of unknown and unascertainable buyers will understand a false advertisement or label. It is the last kind of action in which to invoke the remedy of summary judgment. Indeed, when I see, as I am constantly seeing more and more, the increasing disposition to make use of that remedy, I cannot help wondering whether there is not danger that it may not rather impede, than advance, the administration of justice. It is an easy way for a court with crowded dockets to dispose of them, and the habit of recourse to it readily becomes a denial of that thorough, though dilatory, examination of the facts, on which justice depends even more than upon a studious examination of the law; for a mistake of law can always be reviewed. Speed and hurry ought to be antipodes of judicial behavior.

1 7 F.2d 603.

2 273 U.S. 132, 47 S.Ct. 314, 71 L.Ed. 578.