In the Matter of the Complaint Against

NATIONAL MONETARY CENTER
P. O. Box 37204
at Washington, DC 20013

P.S. Docket No. 11/119;

09/03/82

Cohen, James A.

APPEARANCE FOR COMPLAINANT:
ThomasA. Ziebarth, Esq.

Consumer Protection Division
Law Department
U.S. Postal Service
Washington, DC 20260

APPEARANCE FOR RESPONDENT:
Sheldon S. Lustigman, Esq.
Bass, Ullman & Lustigman
747 Third Avenue
New York, NY 10017

POSTAL SERVICE DECISION
ON BREACH OF CONSENT AGREEMENT

On July 1, 1982, Complainant filed a "Petition For Orders Based On Breach of Consent Agreement" alleging that Respondent had breached the terms of a Consent Agreement executed on June 18, 1981. In its Petition, Complainant sought issuance of a temporary detention order, pending final resolution of the issue concerning the alleged breach of the agreement. On July 1, 1982, the temporary detention order was issued in accordance with paragraph 6 of the Consent Agreement.

Complainant also requests the issuance of a False Representation Order as authorized by the Consent Agreement and 39 U.S.C. § 3005.

The specific representation which Complainant alleges Respondent has continued to make in violation of the Consent Agreement is found in paragraph 3(b) of the Complaint which states:

"The minting of these coins was authorized by a special act of Congress."

Complainant argues that the substance of this representation is made in present advertising by the following statement:

"AUTHORIZED

By An Act Of Congress]

As Part Of A Special Series Of:

ONLY SILVER DOLLARS

OF THEIR KIND EVER

MINTED IN U.S. HISTORY"

Respondent has filed a reply to the Petition denying that its advertisements make the representation in question. It further argues that if there is any doubt about the existence of the representation in its advertising, it must be resolved against Complainant, the drafter of the Consent Agreement.

The Consent Agreement requires Respondent to permanently discontinue use of the representations in the Complaint and to send prospective purchasers responding to the original advertising circular a statement which discloses, inter alia:

"The minting of these coins was not authorized by a special Act of Congress but they were minted pursuant to the general authority of the Bland Allison Act of 1878."

There is no requirement that this statement address the "special series" language included in the original advertising circular.

The advertisement which precipitated the original Complaint is a circular which expressly represented that the coins offered for sale were "Authorized By a Special Act of Congress" and referred to the coins "As part Of A Special Series: Only Silver Dollars of Their Kind Ever Minted in U.S. History." While the advertisement included both the "Special Act" and "Special Series" language, the Complaint addresses only the "Special Act of Congress" language as constituting a false representation. Further, as previously noted, the curative action prescribed in the Consent Agreement only required Respondent to advise purchasers that the coins were minted pursuant to general legislation, the Bland Allison Act of 1878.

The circular which is alleged to violate the terms of the Consent Agreement does not include the "Special Act" language and discloses that the Congressional Authorization for the advertised coins was the Bland Allison Act of 1878 (Petition Ex. 4d). Thus, not only does the advertisement cease the representation that the Morgan silver dollars being sold were minted pursuant to a "Special Act of Congress," but it specifically identifies the authorizing legislation as the Bland Allison Act of 1878. This substantially conforms to the requirement of paragraph 2 (a)(2) of the Consent Agreement with regard to disclosures to prior purchasers. Also, the statement identified in the Petition as continuing the substance of the "Special Act" representation was made in the first advertisement but was not alleged in the Complaint to be a false representation. It may be argued that the "Special Series" language was not alleged as a false representation because Complainant considered it to be included in substance and effect in the "Special Act" representation. However, that argument is rebutted by the limited remedial disclosure the Consent Agreement requires. Accordingly, it is concluded that Complainant has not established that Respondent continues to make the representation contained in paragraph 3(b) of the Complaint.

By stipulation the parties have requested a ruling on whether other circulars are subject to the temporary detention order issued on July 1, 1982. In view of the conclusion that the Consent

Agreement has not been breached, the temporary detention order will be vacated. Therefore, no ruling on the scope of the order is necessary.

Complainant's Petition For Orders Based On Breach of A Consent Agreement is denied, the temporary detention order of July 1, 1982, is vacated and this proceeding is dismissed.