In the Matter of the Complaint Against

U. S. BUREAU OF INFORMATION ON DECEASED AMERICAN VETERANS
U. S. BUREAU OF INFORMATION ON DECEASED AMERICANS
1100 17th Street, N.W. Suite 100
at Washington, D.C. 20036

P.S. Docket No. 9/45;

Duvall, William A.

APPEARANCE FOR COMPLAINANT:
Thom as A. Ziebarth, Esq.
Andrew C. Jagusiak, Esq.
Consumer Protection Office
Law Division
United States Postal Service
Washington, D.C.

APPEARANCE FOR RESPONDENT:
Edmond W. Frank, Esq.
1200 First Federal Building
One Southeast Third Avenue
Miami, FL 33131

INITIAL DECISION

The Complaint in this proceeding was filed on August 28, 1980. The Complaint alleges that Respondent, under the names and addresses appearing in the above caption, engaged in conducting a scheme or device for obtaining money or property through the mails by means of false representations within the meaning of § 3005 of Title 39, United States Code.

Complainant alleges that attention is attracted to said scheme by means of direct mail solicitation letters which are calculated to induce readers thereof to remit money or property to Respondent through the mails. Specifically, it is charged that in these letters Respondent makes the following material representations, which are alleged to be false:

(a) The United States Bureau of Information on Deceased Americans (United States BIDA) and the United States Bureau of Information on Deceased American Veterans are affiliated with agencies of the government of the United States:

(b) The Library of Congress and the U.S. Copyright Office established a "NSD Program" that enables a participant in the "NSD Program" to place a permanent record of the life, family and the accomplishments of the participant's recently deceased relative;

(c) The Library of Congress after payment of the $14.00 fee to United States BIDA will place in the records of the Library of Congress a record of the decedent's life, family and accomplishments.

In the Answer, Respondent denied that it is conducting a scheme; it admitted that it used the materials attached as exhibits to the Complaint, but stated that all of the material it uses did not accompany the Complaint; allegation 3(a) is denied; allegations 3(b) and (c) are admitted and they are said to be, in fact, true; allegation 4 is denied; and it concluded with paragraph 5 reading as follows:

5. Additional material not included herein, has a specific disclaimer and different names. More material is under draft to avoid this specific litigation.

The Answer was signed "W. Ed Herder", for whom no title was given, and it was stated, "The Respondent will appear in person with counsel at the hearing."

The Complaint was served on September 15, 1980, and the Answer was due on September 30. The Answer was mailed by Express Mail on September 29 and received by the Recorder on October 1.

The hearing was continued to and held on October 15. Respondent did not appear either in person or by counsel. At the request on behalf of Respondent's counsel, who claimed he had not been getting delivery of the mail, ^1/ the case was re-set for hearing on December 4, 1980.

On December 3, 1980, Respondent's counsel called and stated that Respondent had decided not to present a defense in this case. In the course of the discussion, Respondent's counsel said that he had worked out with Mr. Ziebarth advertising language which Respondent's counsel believes will enable the business to operate within 39 U. S. Code § 3005.

Accordingly, this decision is based upon the record made at the October 15, 1980, hearing. The fact that former illegal practices have been discontinued does not make moot a pending case involving those practices. United States v. W. T. Grant, Co., 345 U.S. 629, 632 (1953); Hampton v. Mow Sun Wong, 426 U.S. 88, 98 (1976).

At the hearing, charge 3(c) of the Complaint was amended to delete therefrom the amount --"$14.00". (Tr. 29-30)

The first witness called by Complainant was Postal Inspector Carroll T. Dorsey, who conducted the investigation of this case. Inspector Dorsey identified a number of exhibits, including, in part, the following:

Ex. A. An envelope bearing the return address "United States Bureau of Information on Deceased Americans (hereafter U.S.B.I.D.A.), 1100 17th Street, N. W., Suite 100, Washington, D.C. 20036." The envelope is addressed to "Mrs. Sanford W. Dee and the family of Col. Sanford W. Dee, 2740 Springmede Ct., Colorado Springs, CO." and it is postmarked "Washington, D.C., June 18 '80".

Ex. A-1. A form letter on the letterhead of U.S.B.I.D.A., dated June 18, 1980, addressed "To the Family of:" Opposite which the name "Col. Sanford William Dee" has been filled in. There is no signature or facsimile thereof on this form. A copy of this exhibit is attached hereto as Appendix A.

Ex. A-2. An "Official Filing Form", to which an obituary of Col. Sanford William Dee is attached. There is space on which the family may (1) list information not in the obituary and (2) make corrections in the attached obituary. There are also solicitations for the fee of $14.80 for one copy of the Official Filing Document, with a space for indicating the number of additional copies desired at $4.50 per copy. Readers are told to "MAKE CHECK OR MONEY ORDER PAYABLE TO UNITED STATES B.I.D.A." and return this form to Respondent.

Ex. A-3. A sample of a form, suitable for framing, stating that it is acknowledged and recorded that "in the Library of Congress, N.S.D. Program and the United States Copyright Office, Washington, D.C. appear the lifetime contributions of" after which there is space for the insertion of the name of the deceased. This form is attached hereto as Appendix B.

Ex. A-4. A prepaid business reply envelope addressed to Respondent at its Washington, D.C. address.

Examination of Exhibit B, and its correspondingly numbered sub- exhibits, discloses that, in substance, it is to the same effect as Exhibit A. Differences are found as follows:

1. The return addresses in this exhibit are to "UNITED STATES BUREAU OF INFORMATION ON DECEASED AMERICAN VETERANS", but the street address and city are the same.

2. The envelope containing the solicitation and other enclosures is addressed "TO THE FAMILY OF KENNETH (TED) MAYFORD, 945 WINSTON ST., AKRON, OH." and it bears the postmark dated "July 3'80".

3. The form letter bears what appears to be the facsimile signature "James T. Roberts" underneath which is typed "James T. Roberts, Director" (See Appendix C hereto).

4. The fee solicited is $16.80.

On Exhibits A, A-1, A-2 and A-3, and on correspondingly numbered exhibits in the B series, there is a replica of a seal. The seal is circular in shape; it shows the figure of an eagle in the center with wings extending to the outer edges of the seal; the words "United States" appear in the upper portion of the outer border; the initials "B.I.D.A." in the lower portion of the outer border; between the initials "B.I.D.A." and the ends of the extended wings of the eagle, on each side, there are three starts.

Exhibit C is the sworn affidavit of Ms. Mary C. Lethbridge, Information Officer of the Library of Congress.

The matter came to Inspector Dorsey's attention by referral from Ms. Lethbridge, who advised that she had received unsolicited complaints from United States citizens indicating they had received mailing pieces from one of the named Respondents. One of the complaints referred to the Inspector was that of the family of Col. Sanford W. Dee.

Upon being interviewed by telephone, Mrs. Dee told the Inspector that she received the solicitation about a week after her husband's death and three or four days after his obituary appeared in the newspaper. (Tr. 9) She indicated that, initially, she thought U.S.B.I.D.A. was an official agency of the United States government. But upon carefully reading the solicitation, she felt that it was, or seemed, strange that the government would request a remittance in such a short period of time. She got suspicious and se then contacted the Library of Congress to find out whether or not the organization was in fact an official agency of the United States government and an agency of the Library of Congress. At this point, the matter was referred to the Postal Service from Ms. Lethbridge, and subsequently to Inspector Dorsey.

In the course of his investigation, the Inspector conducted two interviews of W. Herder, the name appearing on the Answer. For the first interview, Inspector Dorsey, from Washington, called Mr. Herder, who was in Florida. The parties to the call identified themselves to each other. (Tr. 15) Mr. Herder stated that he was responsible for the mailings and that he developed this mailing piece, or was responsible for developing the mailing piece, and caused them to be placed in the U.S. mails. The remittances were to be sent to him through the U.S. mail to an answering service then shipped the mail to Mr. Herder in Florida. That is what is called a mail drop, or answering service. (Tr. 13-14)

Mr. Herder stated to Inspector Dorsey that neither of the names listed in the caption under which he operates is affiliated with or sponsored by the United States government or the Library of Congress. (Tr. 14)

Mr. Herder said that he ordered approximately 100 newspapers through the mail from all over the country; that he would clip the obituaries out of the newspaper; and that he would send out the mailing pieces to the families of the deceased.

Inspector Dorsey's second interview with Mr. Herder was a person-to-person interview in the Inspector's office and in the presence of Mr. Herder's counsel. At this interview, Mr. Herder did not change any of the statements he made in the telephone interview. (Tr. 16)

The next witness called by Complainant was Ms. Lethbridge. In response to a question she said that the National Serials Data (N.S.D.) program is an attempt to catalogue and share cataloguing for periodicals and journals that are published in the United States. There are thousands of such journals, of which every library has a certain number. Except for that which is done by the Library of Congress, there has been no uniform list or catalogue or serials. The N.S.D. was an attempt to bring together and standardize the cataloguing of serials. (Tr. 21)

Insofar as a relationship between the Respondents and N.S.D. is concerned, Ms. Lethbridge stated that the N.S.D. has no relevance at all to what the Respondents represent. With respect to the statement on the sample certificates sent by Respondents to prospective remitters that "It is hereby acknowledged and recorded in the Library of Congress, N.S.C. Program...", Ms. Lethbridge said:

"That is absolutely meaningless, and unless something were copyrighted, and they had no assurance that indeed it would be eligible for copyright, they should not announce that something is filed in the copyright office."

As to whether the Library of Congress has agreed to maintain the kind of information or service held out by Respondents, Ms. Lethbridge stated with some emphasis:

"...we would never promise anybody that something like that would be in the Library of Congress. That determination is made by selection officers based on certain canons of selection and the Library could not say yes, if you publish that, we will take it. It is just impossible."

"We would have to see the finished product to see if it was going to have any use for scholars, not just tomorrow, but years hence. I doubt very much, knowing what has been selected for the Library, that that material, if it were ever brought together in a publication, would be. The Library, for instance, does not keep a lot of the vanity press, Who's Who compilations." (Tr. 23)

Ms. Lethbridge identified and adopted the statements in her affidavit and thus concluded her testimony.

Findings of Fact and Conclusions of Law

1. Respondent, under the names and at the address shown in the caption, solicits remittances of money through the mail.

2. In seeking remittances of money as stated, Respondent uses certain mailing pieces which were received in evidence as Exhibits A and B, each with sub0exhibits.

3. The meaning of advertising representations is to be judged from a consideration of an advertisement in its totality and the impression it would most probably create in ordinary minds. Donaldson v. Read Magazine, 333 U.S. 178 (1948); Vibra-Brush Corp. v. Schaffer, 152 F. Supp. 461 (S.D.N.Y., 1957); Borg-Johnson Electronics v. Christenberry, 169 F. Supp. 746 (S.D.N.Y., 1959). Express representations are not required. It is the net impression which the advertisement is likely to make upon purchasers to whom it is directed which is important, and even if an advertisement is so worded as not to make an express representation, if it is artfully designed to mislead those responding to it the mail fraud statutes are applicable. G. J. Howard v. Cassidy, 162 F. Supp. 568. See also Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976).

Based on the foregoing criteria, I find and conclude that the Respondent makes the representations expressed in paragraph 3(a) through (c) of the Complaint.

4. The representations, reaching a family which may be, though need not necessarily be, distracted and almost inundated by grief, are material. This is so because in times of bereavement families look for ways in which they may perpetuate the memory of a deceased loved one, and Respondent's somberly phrased offer will seem to provide a vehicle by which this objection may be accomplished.

5. Persons other than bereaved family members will also construe Respondent's representations to mean those statements alleged in paragraph 3(a) through (c) of the Complaint.

6. The admissions of W. Ed Herder and the testimony of Ms. Mary C. Lethbridge establish the falsity of the material representations heretofore found to have been made by Respondent.

7. Respondent, under the names shown in the caption hereof, is engaged in conducting a scheme or device for obtaining money or property through the mail by means of false representations within the meaning of 39 U.S. Code § 3005.

A Mail Stop Order, substantially in the form attached, as provided in Section 3005 of Title 39, United States Code, should be issued against the Respondent.

1/ It later developed that mail addressed to Frank had been refused acceptance at Frank's order.