In the Matter of the Complaint Against:

BUMPHUS AND MATTHEW BUMPHUS,
P.O. Box 9306 at Washington, D.C. 20005 and at
1242 Van Buren Street, N.W., Washington, D.C. 20012

P.S. Docket No. 4/144

02/26/76

Duvall, William A., Chief Administrative Law Judge

H. Richard Hefner, Esq.
Law Department
United States Postal Service
Washington, D.C., for Complainant

Matthew Bumphus,
P.O. Box 9306 and
1242 Van Buren Street, N.W.,
Washington, D.C., pro se

Before: William A. Duvall, Chief Administrative Law Judge

INITIAL DECISION^1/

This case was initiated on January 7, 1976, when the Assistant General Counsel, Consumer Protection Office, Law Department, United States Postal Service, the Complainant, filed a complaint in which it is alleged that Bumphus and Matthew Bumphus at Washington, D.C., hereinafter collectively known as the Respondent, is engaged in conducting a scheme or device for obtaining money or property through the mails by means of false representations contrary to the provisions of Section 3005 of Title 39, United States Code.

The Respondent in this proceeding is engaged in advertising that, for the specified remittances, he will make employment opportunities available to the remitters.

This complaint is based upon three advertisements, which were attached to the complaint as Exhibits A, B, and C, and which will be attached to this decision as Appendices A, B, and C.

Appendix A reads as follows:

"Receive $1000 in Advance addressing envelopes. Method $2. Bumphus, P.O. Box 9306-o, Washington, DC 20005"

The advertisement which appears as Appendix B hereto reads as follows:

"$600.00 MONTHLY mailing letters. Setup $3.00. Bumphus, Box 9306-MI, Washington, D.C. 20005"

The advertisement which appears as Appendix C reads as follows:

"DEALERS - MAILERS - HOMEWORKERS Make $600.00 monthly mailing our sales letters featuring real merchandise. Get $12.00 orders--keep $8.00 profit for yourself. Send for your folio today. Only $2.00.

BUMPHUS 1242 Van Buren St. N.W. T-2, Wash., D.C. 20012 Offer Limited"

Respondent states that he still uses the advertisement or language similar to the language contained in the advertisement which appears on Appendix A. Respondent indicated that in or about August or September of 1975, he discontinued the use of the advertisement which appears in Appendix B. Respondent stated, however, that he does receive an occasional order which indicates that the order results from the advertisement appearing in Appendix B. In those events he fills such orders.

With respect to the advertisement in Appendix C, the Respondent indicated that he discontinued the use of this advertisement in December of 1975. But he made the same statement with respect to the filling of orders arising out of the advertisement appearing in Appendix C as he did with respect to the advertisement appearing in Appendix B.

The Complainant charges that by the use of the advertisements containing the language set forth above, Respondent represents to the public, in substance and effect, as follows:

"(a) Persons remitting $2.00 to Respondent will 'Receive $1000 in Advance addressing envelopes.' (i.e., Respondent has available employment for persons addressing envelopes for which they will receive the sum of $1000 before performing such employment.)

"(b) Respondent has employment available by which the remitter is assured of earning '$600.00 MONTHLY mailing letters.' (e.g., 'DEALERS-MAILERS-HOMEWORKERS Make $600.00 monthly mailing our sales letters featuring real merchandise.' etc.)"

The statute upon which the complaint is based reads as follows:

"(a) Upon evidence satisfactory to the Postal Service that any person is engaged in conducting a scheme or device for obtaining money or property through the mail by means of false representations, * * * the Postal Service may issue an order which --

"(1) directs the postmaster of the post office at which mail arrives, addressed to such a person or to his representative, to return such mail to the sender appropriately marked as in violation of this section, if the person, or his representative, is first notified and given reasonable opportunity to be present at the receiving post office to survey the mail before the postmaster returns the mail to the sender; and

"(2) forbids the payment by a postmaster to the person or his representative of any money order or postal note drawn to the order of either and provides for the return to the remitter of the sum named in the money order or postal note. * * *"

The position of the Complainant has been stated. The position of the Respondent in this proceeding is that he is not representing that he will pay to persons responding to his advertisement the amounts of money stated in the advertisements in exchange for the mailing of envelopes by these remitters. Rather, the Respondent says that what he is offering for sale is information (1) as to how persons responding to his advertisements may make further inquiries, and (2) how such persons, as a result of these inquiries, or by means of the information supplied to them by the Respondent, may earn for themselves varying amounts of money up to and including the amounts specified.

This whole case depends upon the meaning that reasonably may be ascribed to the language used by the Respondent in his advertising material. Now, how is that meaning to be determined? There have been some cases decided by the courts which shed light on this phase of the matter. One such case is Donaldson v. Read Magazine, 333 U.S. 178, at pages 188-9, where it was said:

"Advertisements as a whole may be completely misleading although every sentence separately considered is literally true. This may be because things are omitted that should be said, or because advertisements are composed or purposefully printed in such way as to mislead. * * * Questions of fraud [and this certainly would include also questions as to whether misleading statements had been made] may be determined in the light of the effect advertisements would most probably produce on ordinary minds. * * * People have a right to assume that fraudulent advertising traps will not be laid to ensnare them. 'Laws are made to protect the trusting as well as the suspicious.' * * *"

In the case of Cates v. Haderlein, 189 F.2d 369, it was there said that:

"The buying public does not ordinarily carefully study or weigh each word in an advertisement and the ultimate impression upon the mind of the reader arises not only from what is said but also all of that which is reasonably implied."

In the case of Gottlieb v. Schaffer, 141 F. Supp. 7, there is the following statement:

"The purpose of the statute is to protect the unwary and unsuspecting as well as the knowledgeable and worldly-wise -- those who are 'trusting as well as the suspicious'. The public includes 'that vast multitude * * * the ignorant, the unthinking and the credulous.' The fact that informed and sophisticated persons would readily recognize, laugh off, or even be amused by, obviously false and absurd statements in an advertisement does not detract from their power to deceive the ignorant, gullible and less experienced."

This type of advertisement is directed to individuals who are at the lower end of the economic scale. It does not necessarily follow, but it frequently follows, that people who are at the lower end of the economic scale are less sophisticated than those elsewhere on that scale. They are less likely to read with a cold and calculating eye the promises that are held forth in advertising material. Having this fact in mind and being guided by the decisions of the court which have been quoted above, it is found that the Respondent does make or make in substance the representations which are set forth in the complaint.

Since not in any case so far as this record is concerned is a remitter given a thousand dollars in advance for simply addressing envelopes on behalf of the Respondent, nor $600 a month for mailing letters, it follows that these material representations are false.

There are in this record exhibits which reveal the investigation of this matter in which letters were written to the Respondent establishing clearly the use of the mails in the conduct of this business.

When, as in cases like the instant one, it has been established that a Respondent in the conduct of a business does use the mails, and when it has been shown that the Respondent does make the representations which are set forth in the complaint, and when those representations have the capacity, and their normal impact would be, to mislead the persons to whom they are directed, the conclusion is inescapable that the Respondent is engaged in conducting a scheme or device for obtaining money or property through the mails by means of false representations as proscribed by Section 3005 of Title 39, United States Code.

Upon the basis of the foregoing findings of fact, it is concluded as a matter of law that the Respondent is engaged in conducting a scheme or device for obtaining money or property through the mail by means of false representation within the meaning of 39 U.S. Code 3005. It follows that an order of the type provided for in 39 U.S. Code 3005 should be issued against this Respondent.

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1/ Transcribed from oral decision as rendered at close of hearing held February 9, 1976. Minor changes have been made, but the substance of the decision is unchanged.