
USCA1 Opinion

	




          December 11, 1992                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-2391                                        IN RE:                           WILLIS FURNITURE COMPANY, INC.,                                      Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Joseph L. Tauro, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                Selya, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                 ____________________            Andrew M. Corwin and Eskenas, Schlossberg  & Kaplan, P.C. on brief            ________________     ____________________________________        for appellant.            Leonard  M. Krulewich  and Leonard  M.  Krulewich &  Associates on            _____________________      ____________________________________        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.                                 ____________________                                 ____________________                      Per Curiam.   Debtor contends  that the  bankruptcy                      __________            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                                                 ________     ______            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.                      ________                                         -3-
