In the Matter of the Complaint Against

SEAN MICHAELS 1210 -
66th Street North at
St. Petersburg, Florida 33710

P.S. Docket No. 5/16

12/22/77

Lussier, Edward F.

APPEARANCES FOR COMPLAINANT:
Thomas A. Ziebarth, Esq.
Law Department, U. S. Postal Service
Washington, D.C. 20260

APPEARANCES FOR RESPONDENT:
Jack Paller, Esq.
Katz, Paller & Land,
400 Colony Square, 16th Floor,
1201 Peachtree Street,
NE, Atlanta, Georgia 30361

POSTAL SERVICE DECISION

This appeal is taken by Sean Michaels,^*/ the named Respondent in these proceedings, from the Initial Decision of Administrative Law Judge Quentin E. Grant. That Decision found Respondent engaged in conducting a scheme or device for obtaining money or property through the mails by means of false representations and recommended the issuance of a mail stop order under 39 United States Code § 3005.

Respondent's appeal brief is not broken down into the specific exceptions contemplated by § 952.25 of our Rules of Practice. While the exceptions to the Initial Decision lose some preciseness because of this, their general thrust is nevertheless clear enough. Respondent has filed a supplemental brief, expanding upon what might be termed its last general exception in its appeal brief. It has also filed a memorandum based upon information it has received in response to a Freedom of Information Act request. Finally, it has filed supplemental materials related to a recent patent it has obtained on its product. To all of these, Complainant has filed replies, the last on December 7, 1977.

The first portion of the appeal brief is addressed in general terms to the purpose and Congressional intent of 39 U.S.C. § 3005 which in sum and substance argues that it is inapplicable in the absence of evidence of a consumer complaint. The absence of citations to any legal precedent for that proposition in Respondent's Brief is perhaps best explained by the fact that the precedent supports the opposite conclusion, namely, that if false representation is shown, evidence of its success in the form of a complaint is not essential to the statutory purpose. See Farley v. Heininger, 105 F.2d 79 (D.C. cir, 1939); U.S. v. International Termpapers, Inc., 35 F.Supp. 76 (1972), 477 F.2d 1277 (1st Cir. 1973). Nor is it necessary as Respondent's Brief suggests that the government's expert medical witnesses have conducted tests of the product. See Roger Laboratories, Inc., P.S. Docket No. 4/123 (April 1976), and Skinny Suit, P.S. Docket No. 3/44 (February 1976).

Respondent also contends in effect that the Initial Decision is inconsistent in finding that Respondent falsely represented its product is a new invention, as charged in Complaint, paragraph 3(d), because the exerciser was not substantially different from many other devices for so-called bust development while at the same time, in Conclusion of Law 3, attributing a certain effectiveness to the product which Respondent alleges has not been found in other cases dealing with similar products. The reasoning simply does not follow. A review of the cases will indicate that pectoral development through exercise underlies most of the methods and the issue normally involves the alleged distortion of this into an increase in the size of the breast and/or an impermissible exaggeration of the extent of the development. That some benefit in appearance may result from following a particular program is often apparent. It is normally not the absence of any benefit whatsoever but rather the nature and/or degree of benefit that lies at the heart of the false representation. A specific finding in a given case as to a particular benefit therefore does not equate to a finding of a new invention.

However, as a new basis for dismissal of Complaint paragraph 3(d) Respondent has moved to supplement the record with certain exhibits purporting to show issuance of letters patent, on October 4, 1977, to the Sean Micheals Bust Expander under an application filed January 12, 1976. Complaint paragraph 3(d) alleges material falsity in Respondent's advertising claims that

"(d) The SEAN MICHEALS BUST EXPANDER is a new invention utilizing a principle called 'pectoral isolation' which 'more or less isolates the bustline areas that most need improving' and which differs substantially from other so-called bust developers;"

While the motion to supplement the record comes some time after closing of the record, Complainant has made no objection. These additional documents are received in evidence. However, the claims in the patent relate solely to the physical characteristics of the product and thus differ from the broader representation in Complaint allegation 3(d). It can be said here, as in Jill Jara Ltd., P.S. Docket No. 2/117 (Initial Decision January 1975, Postal Service Decision June 1975), that "on the record here made the claims allowed in Respondent's patent are not factually determinative of the issues at hand." The Initial Decision was based, as Finding of Fact 19 and the testimony cited therein make clear, upon the breadth of the Respondent's representations and the functional similarity of its product to other devices and not to their patentable characteristics.

In addition to the representation in Complaint paragraph 3(d), quoted above, Judge Grant found the following representations made by Respondent's advertising also to be materially false.

"(a) The SEAN MICHAELS BUST EXPANDER will increase the size of the female user's breasts;

(b) The SEAN MICHAELS BUST EXPANDER will cause an average increase in the female user's bustline measurements of 3 1/2 inches in 14 days ... 5 inches in 21 days;

***

"(e) The advertised results described above will be achieved by using the SEAN MICHAELS BUST EXPANDER for three minutes per day or less."

As pointed out in the Initial Decision Complainant's expert witness and Respondent's expert witness both agreed in testimony that the use of the Respondent's product will not increase the size of the female user's breasts (I.D. Finding of Fact 12). The falsity of the average bustline increase claim found in Compliant paragraph 3(b), quoted above, is clearly set forth in the Initial Decision with supporting basis and, despite Respondent's argument to the contrary, fully supported by substantial evidence. The same may be even more obviously said for the representation in Complaint paragraph 3(e), quoted above.

Respondent attacks the substantiality of the testimony of Complainant's expert by contending it was at least partially rejected by the Administrative Law Judge in his later findings regarding the experiment conducted by Respondent and described in some detail in the Initial Decision. It is clear from the Initial Decision however that Judge Grant weighed the totality of the evidence in the record and, so viewed, it constitutes substantial evidence to support the conclusion reached.

Respondent further contends in effect that proper weight was not given to the testimony of one of its witnesses regarding the general understanding of the term "bustline" among the vast multitude of women who sew. I have reviewed the testimony and believe Judge Grant gave it the weight it deserves. As the Initial Decision indicates it is the context of Respondent's advertisement which controls and in that context the term bustline is designed to convey the meaning "breast."

The remainder of Respondent's Brief on appeal is concentrated upon advertisements in use by competitors and the beginning of what is later more fully developed in supplemental filings as its "Mark Eden" argument, its claim of discriminatory enforcement of 39 USC § 3005. The essence of this argument is that the representations found to be false are not in fact made by Respondent's advertising, or, if they are made, they are also made by others against whom no enforcement action is pending and this constitutes a discriminatory enforcement of the law which requires the dismissal of these proceedings.

In its Appeal Brief Respondent attaches and refers to an advertisement for "Beauty Breast" which it identifies as a "compliance ad" being run after the adverse Postal Service Decision in P.S. Docket No. 1/40, Beauti-Breast of Paris (1975). Comparison between the "compliance ad" and the advertisement which was the subject of the earlier proceedings viewed in the light of the specific charges in that proceeding reveals significant differences. Likewise a comparison of the "compliance advertisement" with Respondent's advertisement shows that they are distinguishable in many points. Whether the particular Beauti-Breast advertisement would pass muster on charges of misrepresentation identical to those in the instant proceedings, or on any other charges, is not the issue in this case. In fact, in the above cited Beauti-Breast of Paris case a similar argument was unsuccessfully made regarding the earlier Mark Eden case, P.O.D. Docket No. 2/204 (1968). For like result see Iso-Tensor Plan, et al., P.S. Docket No. 3/30 (1975). Affirmed sub nomine Body Persuasion Systems, Inc. v. USPS (Feb. 5, 1976, CV 75-1996, D.C. Dentral Dist., Calif.)

Respondent's Supplemental Appeal Brief and its later memorandum based upon materials it received under the Freedom of Information Act further expands upon its argument on the Mark Eden case. It would distinguish the Beauti-Breast of Paris and Iso-Tensor cases above cited on the basis that the advertisements there contained no disclaimers as distinguished from the Respondent's advertisement.

The disclaimer Respondent refers to is found in language in its advertisement in the form of a conversation between Sean Michaels and a satisfied user who claims to have increased her bustline 5 inches in 21 days. The sentence reads: "As you know, I don't claim that everyone who uses the Sean Michaels Bust Expander will achieve the same results you did, the fact is some may do better and some not as well." This is part of a conversation, headlined by the bold quote "BEING FLAT-CHESTED IS NO FUN," and highlighting twopictures where the user refers to a "before" picture and states "As you can see from the before picture my bust was rather small," which picture is immediately adjacent to what is obviously the "after picture" illustrating, if anything, what appears to be a substantial increase in size of the breasts. The "disclaimer" loses all efficacy as such in the context of the total advertisement and is weaker than the "disclaimer" in the so-called compliance ad for Beauti-Breast ("no system short of surgical implants or injections can enlarge the breasts alone") and weaker also than the "disclaimer" in the Mark Eden advertisement, which Respondent places greatest emphasis upon in its Appeal Memorandum dated May 19, 1977, ("Is every woman assured some results with the Mark Eden Developer? No, it would be impossible to assure every woman that she will achieve specific proportions, measurement increases or results"). As pointed out above these other advertisements are not in issue at this time but Respondent's contention that its disclaimer requires dismissal of this proceeding because of them is flawed further by factual distinctions rendering its disclaimer the least apparent of all.

Respondent's citations to case precedents for the rule that an administrative agency must conform to its own precedents or explain its departure from them do not require a different result in this case. Atchison, Topeka & Santa Fe Railway Co. v. Wichita Board of Trade, 412 US 800 (1973); International Union, United Auto., Aerospace & Agricultural Implement Workers v. NLRB, 459 F.2d 1329, 1341 (D.C. Cir 1972); FTC v. Crowther, 430 F.2d 510, 514-516 (D.C. Cir 1970). Despite Respondent's contention to the contrary, the decision of the Acting Judicial Officer in the Mark Eden case did not purport to, nor does it, lay down any rule of general law which mandates a particular result in the instant case. It may be noted also that the final word in that case was that of the Ninth Circuit Court of Appeals in Mark Eden v. Lee, 433 F.2d 1077 (1970) and the Court elected to decide the case on the basis of an interpretation of the refund provisions of the Affidavit and not resolve the question of whether the alleged representations may be implied from the language in the "compliance ad." 433 F.2d at 1084.

Nor does the failure of Complainant to have instituted proceedings against Mark Eden on current advertising require dismissal of the charges against Respondent on the basis of a vlid claim of discriminatory enforcement. Respondent's Memorandum based upon Freedom of Information Act materials it requested and received after it filled its Supplemental Appeal developing its "Mark Eden" argument traces the history of Complainant's actions, or lack thereof, in considering whether to institute proceedings against Mark Eden. Respondent would conclude from this that its case is indistinguishable and that the failure to institute enforcement proceedings in the Mark Eden case establishes that Respondent does not make the representations charged against it or that Complainant has been discriminatory in favor of Mark Eden.

It is not necessary to here itemize the entire record or argument regarding these additional materials although that has been recently succinctly done in the Initial Decision issued by Administrative Law Judge Rudolf Sobernheim in Sara Michaels, P.S. Docket No. 5/95 (August 23, 1977). It suffices to say that the materials show a past concern, by the officials charged with instituting enforcement proceedings, over the potential for success related in large part to the particular circumstances and history of past proceedings with Mark Eden. It falls far short of any showing of the bad faith Respondent suggests and in fact indicates a new investigation opened in April 1977. There is no substantial showing of arbitrariness or bad faith on the part of the Complainant and in fact the past decision not to initiate proceedings appears if anything influenced by factors beyond the language of the particular representations.

It should be clearly understood that it is not the intent of this decision to rule directly, or by implication, on the merits of any other case that might be later brought. The decision is based instead on the failure of proof to establish Respondent's charge of discriminatory enforcement requiring dismissal of the present charges against it, charges which on my review of the record are proven by substantial evidence showing false representations upon the public. For this a mail stop order is the appropriate statutory remedy.

Accordingly, Respondent's Exceptions to the Initial Decision are disallowed and that Decision is affirmed. An appropriate remedial order under the provisions of 39 USC § 3005 will be issued forthwith.

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*/ Also spelled "Micheals" in some advertisements (see Complainant's Exhibit 1B) as well as in various of the pleadings filed in this case.