Mourning v. Family Publications Service, Inc.

RESPONDENT: Family Publications Service, Inc.
LOCATION: Frontiero's Residence

DOCKET NO.: 71-829
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: United States Court of Appeals for the Fifth Circuit

CITATION: 411 US 356 (1973)
ARGUED: Nov 09, 1972
DECIDED: Apr 24, 1973

A. Raymond Randolph, Jr. - for United States, as amicus curiae, pro hac vice, by special leave of Court
Eric Schnapper - for petitioner
Robert S. Rifkind - for respondent
Raymond Randolph Jr. -

Facts of the case


Media for Mourning v. Family Publications Service, Inc.

Audio Transcription for Oral Argument - November 09, 1972 in Mourning v. Family Publications Service, Inc.

Warren E. Burger:

We will hear first this morning in number 71-829, Mourning against Family Publications.

Mr. Schnapper, you may proceed whenever you are ready.

Eric Schnapper:

Mr. Chief Justice, may it please the court.

This is the first case to reach this court arising out of one of the most important federal statute for the protection of the consumers.

The Truth in Lending Act of 1968.

That statute was enacted to inform consumers about the cost of credit and about the other terms of credit transactions.

Congress was particularly concerned, to aid consumers like the plaintiff in this case, a 75 year old widow living on a government pension of $82.50 a month, who can ill afford high finance charges or excessive financial commitments.

Defendant admits that it failed to make several disclosures applied by the regulations of Federal Reserve Board but claims that those regulations are invalid.

The facts of the case are as follows.

On August 19th, 1969 following a telephone solicitation, Mrs. Mourning entered into a contract with the defendant Family Publications Service for the purchase of four magazines.

The contract is set out on pages 6 and 7 of the printed appendix.

Under the terms of the contract, Mrs. Mourning was to receive Life, Holiday, Ladies Home Journal and Travel and Camera for period of five years.

Warren E. Burger:

You would help me counsel, because I wonder if -- I am not sure I have spelled it out accurately.

What would be the price of each of these if you just subscribe by mail in the ordinary course?

Eric Schnapper:

There is nothing in the record to indicate what the price would have been.

Warren E. Burger:

Do you think that's not important to the case?

Eric Schnapper:

Under the terms of the regulation and the statute, it's not.

Whether or not, she was given a good price is ultimately something that she under our economic system ought to been able to determine for self.

One of the problems that arises out of the failure of the defendant to disclose the total price of the goods was that even she had been aware, the terms offered by the publisher directly.

She had no way of making that comparison.

Warren E. Burger:

Well if it's an inflated price on a package deal in order to conceal carrying charges, isn't that pretty important?

Eric Schnapper:

Well, absent the regulation it would be necessary to inquire about the general practices of the defendant as to whether or not, it was inflating as prices --the whole purpose of the regulation was to make that very detailed and complicated factual inquiry unnecessary, both to avoid deterring private actions such as this one and to make sure that the statute itself was administrative, otherwise the Federal Reserve Board and other enforcement agencies would be in the business of trying to compare the prices for other magazines or bicycles or television sets with the prices charged in contracts like this for all the consumer contracts that are signed every day in country.

Warren E. Burger:

But in the classical usury cases, isn't it ordinarily an important factor of evidence to show that the automobile, particular automobile had listed price, a cash price and a time price.

That's the way you improve your concealed usury.

Eric Schnapper:

Well, that that.

Warren E. Burger:

Do you say that under these regulations that becomes irrelevant now?

Eric Schnapper:

That's correct.

Under the regulations that problem is not the one that has to be dealt with by the board or by plaintiffs seeking to prove that the information should have been disclosed.

Mrs. Mourning paid $3.95 down and agreed to pay $3.95 a year for two-and-a-half years.

The contract did not disclose that the cost of magazines was $122.45 in order to disclose the amount due after the down payment was $118.50.