In Re: v. Willis Furniture Co ( 1992 )

USCA1 Opinion

          December 11, 1992
                                [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT



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        No. 92-2391



                                        IN RE:

                           WILLIS FURNITURE COMPANY, INC.,

                                      Appellant.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                     [Hon. Joseph L. Tauro, U.S. District Judge]
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                                        Before

                                Selya, Cyr and Boudin,
                                   Circuit Judges.
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            Andrew M. Corwin and Eskenas, Schlossberg  & Kaplan, P.C. on brief
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        for appellant.
            Leonard  M. Krulewich  and Leonard  M.  Krulewich &  Associates on
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        Emergency  Motion for an Expedited Hearing, or in the Alternative, for
        an Expedited  Decision on Briefs  Alone, for the  Unofficial Creditors
        Committee of Willis Furniture Company, Inc.


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                      Per Curiam.   Debtor contends  that the  bankruptcy
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            court order  authorizing  debtor's  cash  raising  sale,  but

            forbidding the sale  to be advertised as a "Bankruptcy Sale,"

            "Chapter 11 Bankruptcy Sale," or  words of similar import  if

            merchandise being  sold  is  not  part  of  debtor's  present

            inventory precludes truthful advertising and thereby violates

            debtor's First Amendment rights.  We disagree.

                      The arrangement  debtor described with  ZLI permits

            debtor to serve in  large measure as a conduit  through which

            ZLI may  sell  new  inventory,  financed  by  ZLI,  utilizing

            debtor's premises and goodwill.   To refer to such a  sale as

            debtor's  chapter  11  bankruptcy  sale,  when  inventory  is

            furnished  on a consignment  basis by  a solvent  company not

            under  the   pressure  of  chapter  11  to  raise  funds,  is

            misleading.    Misleading  or  deceptive  advertising  is not

            protected  by the First  Amendment.  Friedman  v. Rogers, 440
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            U.S. 1, 13-16 (1979).

                      Debtor contends that the advertising prohibition is

            broader than  necessary since a narrower  prohibition -- such

            as a  requirement that debtor  disclose the existence  of new

            inventory brought into the sale -- would suffice.   So far as

            the excerpts of the record debtor has  presented show, debtor

            never argued  below  that  a  narrower  prohibition  allowing

            debtor both  to explain  that  it was  in chapter  11 and  to

            disclose accurately  the circumstances  of its  argument with

            ZLI   should   be  permitted.      Rather,   in  moving   for

            reconsideration,   debtor   pointed   to  another   company's



















            advertisement  containing  the words  "chapter  11 bankruptcy

            sale"  and contended  it was  unfair not  to allow  debtor to

            advertise  in the same manner.  We will not consider debtor's

            rather  undeveloped argument,  presented (so far  as appears)

            for  the  first time  on appeal.    Nothing in  this opinion,

            however, precludes debtor from seeking to modify the November

            16, 1992  order and  explaining to  the bankruptcy court  how

            debtor could frame  an accurate advertisement containing  the

            words "bankruptcy sale" or "chapter 11 bankruptcy sale" which

            also discloses  the relevant aspects  of debtor's arrangement

            with ZLI.

                      Affirmed.
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