In the Matter of the Complaint Against

SHARON L. TAYLOR
2830 Copley Road
at Copley, Ohio 44321

and
HALBERT'S, INC.
at Bath, Ohio 44210

P.S. Docket No. 14/32;

06/27/83

Bernstein, Edwin S.

APPEARANCES FOR COMPLAINANT:
Thomas A. Ziebarth, Esq.
Consumer Protection Division
Law Department
United States Postal Service
Washington, D.C. 20260-1100
Steven B. Caver, Esq.
Regional Inspector/Attorney
Central Region
United States Postal Service
Chicago, IL 60607-5401

APPEARANCES FOR RESPONDENT:
Timothy J. May, Esq.
Claudia L. Deering, Esq.
Patton, Boggs & Blow
2550 M Street, N.W.
Washington, D.C. 20037-1350
Thomas J. Scanlon, Esq.
Donahue & Scanlon Suite 1500,
One Erieview Plaza
Cleveland, Ohio 44114-1789

BEFORE: Judge Edwin S. Bernstein

INITIAL DECISION

Complainant alleged and Respondents denied that Respondents are engaged in a scheme or device to obtain money through the mails by false representations in violation of 39 U.S.C. § 3005. The hearing was held in Washington, D.C., on November 22, 1982, and January 11, 1983. John J. Daly testified for Complainant while Roger S. Seasonwein, George Daniel Balsama, Phillip W. McMullin, and Dennis B. Haslinger testified for Respondents. Both sides filed proposed findings of fact, proposed conclusions of law, and legal memoranda. These have been considered. To the extent indicated, they have been adopted. Otherwise, they have been rejected as irrelevant or not supported by the evidence.

FINDINGS OF FACT

I. The Use of The Mails

Respondents publish and market books about specific family surnames entitled The Amazing Story of the surname(s) in America. Respondents sell these books through direct mail advertising. Respondents admit this in Paragraphs 2 and 3 of their Answer. Complainant's Exhibits (CX) 4 and 5 also support this finding.

II. Respondents' Representations

At the hearing on November 22, 1982, in accordance with the parties' stipulation, the August 6, 1982 Complaint was amended to dismiss subparagraphs 3(b), (c), (g), (i) and (j) and renumber subparagraphs 3(a), (d), (e), (f), and (h) as 3(a), (b), (c), (d), and (e) respectively.

The parties stipulated that I find that the advertising materials in CX-1 through 5 were used by Respondents to advertise their books on and before November 22, 1982 (Tr. 45-46). At the hearing, Respondents stated and Complainant accepted the statement that as of January 11, 1983, Respondents no longer used the materials at CX-1 through 5 but have replaced them with the letter found at RX-1 (Tr. 47). Complainant argues that both sets of advertisements are misleading, as alleged, while Respondents deny that either set is misleading (Tr. 48).

My findings with regard to subparagraph 3(a) as amended discuss whether the representations were made by both Respondents' former and modified solicitations. Advertising language will be delineated by the words "earlier", "present", or "both".

(a) The book consists primarily of the story of the particular family name listed in the solicitation.

"Primarily" has been defined as follows:

(1) "first of all; fundamentally; principally". Webster's New International Dictionary, Third Edition, G.C. Merriam Co., 1961.

(2) "essentially; mostly; chiefly; principally". The Random House Dictionary of the English Language, Unabridged Edition, 1967.

(3) "In the first place, first of all, pre-eminently, chiefly, principally; essentially". The Compact Edition of the Oxford English Dictionary, Oxford University Press, 1971.

Although Respondents' advertising material does not use the word, "primarily" in the context of the above allegation, both Respondents' previous and present advertising inferentially make the alleged representation: First the titles, "The Amazing Story of the surname(s) in America" make the representation (both). This is repeated in the solicitations by " our or my new book, The Amazing Story of surname(s) in America, is ready for printing and you are in it." (both, CX-1, RX-1). The following additional language from Respondents' advertising makes the representation:

(1) "In addition to the surname family directory, our my book has other interesting and informative chapters on:

1. How the surname family got its name and what it means.

2. Important but little known facts about the surname population in the United States. (both, CX-1, CX-2, RX-1).

(2) "Even though the book is printed for you alone." (both, CX-1, CX-2, RX-1)

(3) "Here is a picture of me holding a copy of the fascinating book about your name." (earlier, CX-3)

(b) the book contains detailed and complete research about the history of the surname of addressee family name;

(c) the book contains detailed and complete research about the surname of addressee population in the U.S.;

(d) the book contains detailed and complete research about the surname of addressee coat of arms;

I find that Respondents' advertisements do not make the representations alleged in subparagraphs 3(b), 3(c), and 3(d) of the Complaint as amended.

"Detailed" has been defined as follows:

1. "Marked by abundant detail or by a thoroughness in treating small items or parts." Webster's Dictionary, supra.

2. "Having numerous details; thorough in the treatment of details; minute." The Random House Dictionary, supra.

"Complete" has been defined as follows:

1. "Possessing all necessary parts, items, components or elements; not lacking anything necessary; entire, perfect." Webster's Dictionary, supra.

2. "Having all its parts or elements, lacking nothing; whole; entire; full; finished; ended; concluded; having all the required or customary characteristics, skills, or the like, consummate; perfect in kind or quality; thorough; entire; total ..." Random House Dictionary, supra.

3. "Full; entire; including every item or element of the thing spoken of, without omissions or deficiencies . . . perfect; consummate; not lacking in any element or particular." Black's Law Dictionary, Fifth Edition, 1979.

These definitions of "complete" were relied on in Robertson v. State, 406 S.W. 2d 90 (Texas 1966); Southern Guaranty Insurance Company v. Scott, 266 So. 2d 602 (Ala. 1972); Versailles TP. v. Ulm, 152 Pa Super 384, 33 A 2d 265 (1943); Hensler v. City of Los Angeles, 268 P. 2d 12 (1954).

In its proposed findings and conclusions, Complainant contends that the following language in Respondents' advertisements makes the alleged representations:

(b) The book contains detailed and complete research about the history of the surname of addressee family name.

In addition to the surname family directory, our my book has other interesting and informative chapters on:

1. How the surname family got its name and what it means.

This collection of historical and current information is available in The Amazing Story of the Surname(s) in America. (CX-1, CX-2)

It covers such topics as:

1. How the surname family got its name and what your name means.

2. Important but little known facts about the surname population in the United States (RX-1, RX-20)

(c) The book contains detailed and complete research about the surname of addressee population in the United States.

The surname name is very rare and our my research has shown that less than _____ one-thousandths of one percent of the people in America share the surname name. We I have spent a great deal of effort months of work and thousands of dollars to research through 70 million families and we I have located almost every surname Family in the United States. Our My new book includes this valuable and extensive directory of surnames living in America. (CX-1, CX-2; RX-1, RX-20)

In addition to the surname family directory, our my book has other interesting and informative chapters on:

2. Important but little known facts about the surname population in the United States. (CX-1, CX-2)

It covers such topics as:

2. Important but little known facts about the surname population in the United States. (RX-1, RX-20)

(d) The book contains detailed and complete research about the surname of the addressee coat of arms.

In addition to the surname family directory, our my book has other interesting and informative chapters on:

3. Why and how the first surname was granted his Coat of Arms.

4. An expert interpretation and drawing of the surname Coat of Arms which ancient archives reveal is over 600 years old. (CX-1, CX-2)

It covers such topics as:

(3) Where we discovered an unusual Coat of Arms granted to an early surname with its original heraldic description.

(4) An expert interpretation and drawing of this surname Coat of Arms which ancient archives reveal is over 600 years old. (RX-20)

Neither the language cited by Complainant nor any other language in Respondents' advertisements that were received in evidence makes the representations alleged in subparagraphs (b), (c) or (d) of Paragraph 3 of the Complaint.

The advertisements represent that the book contains "interesting and informative" chapters on, (1) how the family got its name and what it means, (2) little known facts about the surname population in the United States, (3) the family's Coat of Arms. In the context used, it is a distant leap from "interesting and informative" to "detailed and complete," as the latter terms have been defined and are commonly understood. Therefore, the allegations in subparagraphs 3(b), (c) and (d) of the Complaint, as amended, are unfounded.

(e) It has spent months of work and thousands of dollars to locate almost every person in the United States having the same surname(s) as the addressee.

In its Proposed Findings and Conclusions, Complainant stated "this representation is limited to the claim that months of work and thousands of dollars were spent by Respondents simply to locate persons having the same surname as addressee." (P. 27).

In support, Complainant cites the following three paragraphs from Respondents' advertising.

We I have spent months of work and thousands of dollars to research through 70 million families and we I have located almost every surname Family in the United States.

We I have been doing some work for people who have the same last name as you do. Finally, after months of work our my new book, THE AMAZING STORY OF THE SURNAME IN AMERICA, is ready for printing and you are in it. (CX-1, 2)

We have spent months of work and thousands of dollars to research through 70 million American names and we have located almost every surname Family in the United States. (RX-20)

I disagree that this advertising represents that the months of work or the thousands of dollars were spent simply to locate persons having the same surname as the addressee.

The advertising conveys the message that thousands of dollars and months of work were spent to research through 70 million families, but it does not represent that all that time and money was spent to locate a given surname.

The representation that Respondents have spent months of work and thousands of dollars to research through 70 million families was substantiated. Mr. Dennis B. Haslinger, an officer of Respondents, testified that $60-70,000 was spent to create the initial computer sort of surnames (Tr. 172), that much more ($200,000) has been spent to update the file, and that another $11,000 must be spent for each computer sort for a limited number of specific names (Tr. 173). Moreover, Mr. Haslinger presented uncontradicted testimony that a much larger expenditure of money, maybe 10 times as much, is involved in connection with the research for the non-directory portions of the books (Tr. 189). He testified that the overall cost for historical and current research for 72 million surnames was over $3 million (Tr. 171).

Although Complainant's witness, John J. Daly, a communications consultant who specializes in direct marketing, testified that lists of names can be obtained more cheaply, neither his testimony nor any other evidence disproved Mr. Haslinger's testimony regarding costs and time.

III. The Truth or Falsity of the Representation

(a) The book consists primarily of the store of the particular family name listed in the solicitation.

Although Respondents' books are attractively bound, contain much information, may well be worth the $24.95 sales price, and appear to be interesting and useful to many purchasers, Respondents' advertising misrepresents when it implies that the books are primarily about the family named in the title.

The books about various names that were introduced into evidence are quite similar. These are "The Amazing Story of the Alcocks (CX-6), Baggetts (CX-7), Guyettes (CX-8), Karns (CX-9), and Killingsworths (RX-3a) in America." All have dark red vinyl covers on which the title, the name, or a decoration is stamped in gold. The chapter titles mention the name in question. Three of the books (CX-8, CX-9, RX-3(a)) contain a chapter entitled, "Where Our Ancestors Came From". This is slightly more than three pages and tells the story of various types of immigrants who came to the United States. It is interesting general material but it has no special relationship to the family name in the title. In RX-3(a) the name "Killingsworth" is inserted in the general material. In CX-8 and CX-9, the family name of the book is not mentioned in this chapter.

The next chapter in all books, "How the name in question Family Got Its Name and What the Name Means" consists of about four and one-half pages. It contains interesting material which indicates how various names were developed. However, of these four and one-half pages, only between three and seven lines specifically refer to the name in the book's title. The next chapter, "How An Early name in question was Granted A Coat of Arms" consists of between six and nine pages on coats of arms and heraldry. All but one page is material on the subject generally. One page contains a picture of the title family's coat of arms and analyzes portions of the coat of arms. Next, is one page that lists the number of the title name's United States population by states. The next chapter, "How to Trace Your name in question Ancestors" contains about 40 pages of material on how to trace ancestors including about six pages of names and addresses of Bureaus of Vital Statistics in the 50 states, about six pages of blank forms, two blank pages entitled "Personal Notes", a ten page glossary of "The Jargon of Genealogy", four pages that explain commonly used genealogy abbreviations and a two page bibliography. The books conclude with between 13 and 60 pages of computer printouts listing all persons with that last name found in the United States by full name, address and, in many cases, telephone number. Thus, of the entire books, the only real namespecific material are the computer lists of names, one page about the coat of arms, the one page list of persons with the name by states, and the three to seven line paragraph describing how the name developed. The remainder of the books contains general material that has nothing specifically to do with the name in question. Although the books are interesting and perhaps worth their price to many, they do not fulfill their title representation of being "The Amazing Story of the Surname(s) in America", a title that conveys the representation that it is primarily the story of that family.

Each side introduced a good deal of evidence about the reactions and perceptions of purchasers of the books. Complainant introduced 13 letters from dissatisfied purchasers (CX-10 through 22). Some of these embodied the conclusions that I have reached. One writer stated "My complaint rests on the word, 'story'" (CX-15). Another stated, "Book turned out to be nothing but a directory of Darks . . . No history other than a description of the Dark Coat of Arms" (CX-22). Respondents introduced 15 complementary letters by pleased customers (RX-5 through 19).

Respondents also presented the testimony of Roger S. Seasonwein, who heads a firm that specializes in conducting communications surveys primarily for major corporations and non-profit organizations. (Tr. 57). Early in December 1982, Respondents retained Mr. Seasonwein to conduct a survey among Respondents' customers to determine whether they considered the advertising materials for The Amazing Story of... series to be accurate (R. 58).

A total of 624 persons were randomly selected and interviewed out of a universe of over 30,000 people (R. 63, 64). Background information elicited by the study revealed that 80 percent of the subjects were men in the age range of 35 to 60. Mr. Seasonwein concluded that the subjects were "pretty sophisticated" and more pessimistic than most people. (R. 72)

Table 12 tabulated the subjects' overall evaluation of the book. They were asked whether they felt that the book was "very good, pretty good, fair, pretty poor, very poor or don't know." Sixty-four percent gave a positive response; i.e., chose one of the first three answers. Thirty-one point three percent gave a negative response; i.e., pretty poor or very poor. Four percent didn't know or didn't answer.

Tables 13 through 18 deal with the interviewees' attitudes about listed items in The Amazing Story of... books. The responses were tabulated as follows:

Don't Know or

Positive Negative Didn't Answer

Table 14-How the Family Got Its Name 55.9 33.5 10.6 Table 15-Important Facts About the surname Population In The United States 60.6 26.1 13.1 Table 16-Discussion and Description of surname Family Coat of Arms 60.7 23.4 15.9 Table 17-Interpretation or Drawing of the surname Coat of Arms 61.2 21.0 17.8 Table 18-Suggestions on How to Research Your Ancestry and Trace Your Family Tree 63.8 20.4 15.9

Table 19 determined that nearly 72 percent of the purchasers knew that the book was sold with a money-back guarantee while only 14.3 percent thought that it was not. Thirteen point nine percent didn't know or gave no answer. Table 20 shows that nearly 80 percent of the people queried kept the book because they wanted it. Sixteen percent did not want it and some of these may have returned it for a refund. Table 22 shows that the average purchaser spent about two hours looking at the book. Table 23 probes the purchaser's impressions of the accuracy of the advertising letter. Sixty-one point four percent gave a positive response ranging from "very accurate" to "fairly accurate." Thirty point one percent gave a negative response; i.e., "not too accurate" or "not at all accurate." Eight point three percent didn't know or gave no answer. Thus, perhaps approximately 9,000 purchasers of the book thought that the advertising letter was "not too accurate" or "not at all accurate." (Thirty percent of universe of 30,000.)

Tables 24 through 29 tabulate the results of questions about specific items in the advertising letter.

Don't Know or

Positive Negative Didn't Answer

Table 24-Directory of surname in U.S. 61.9 29.2 9.1 Table 25-How surname Family Got Its Name and What The Name Means 56.4 27.7 15.9 Table 26-Important Facts About the surname Population in the U.S. 61.1 20.5 18.4 Table 27-A Discussion and Description of the surname Coat of Arms 58.7 19.6 21.8 Table 28-Interpretation and Drawing of the Coat of Arms for the surname . 58.5 18.3 23.2 Table 29-Suggestions on How To Research Your Ancestry and Trace Your Family Tree 61.2 17.1 21.6

While only 8.3 percent didn't know or gave no answer when asked their general impression of the accuracy of the advertising (Table 23), this percentage rose sharply as the questions became more specific. (Table 24).

Mr. Seasonwein concluded that his survey showed that the advertising was not deceptive. However, that perception of advertising accuracy was less than 62 percent among those polled.

Although the survey was commissioned in December--after this litigation was begun--unfortunately certain key questions were not asked. There was no question about the appropriateness of the title of the book and the survey did not inquire into the expectations of prospective purchasers regarding the extent to which name-specific data would be included in the book.

Although this was a professionally performed survey by a highly experienced and reliable firm and showed a good deal of satisfaction with the book, its results did not dispel my conclusion that although the book may be interesting and of value, it did not fulfill the claims of its advertising and its title that it is primarily the story of the named family.

Neither did Respondents' other witnesses dispel this conclusion.

Phillip W. McMullin a genealogist and president of Institute of Family Research, a company that traces people's ancestry (R. 158), stated that the Alcock book (CX-6) contains information that would be of value to anybody, particularly a genealogist. (R. 161) Although Mr. McMullin praised the books and indicated that his firm would charge between $100 and $150 for the genealogical information regarding the Alcock name and the directory portion would cost $1,000 if done manually (R. 162), he admitted that only between four and fifteen lines other than the directory applied to the Alcocks specifically (R. 164).

Dr. George Daniel Balsama, a professional historian (R. 124-126), stated that Respondents' books contain historical information (R. 128) although he conceded that name-specific material comprises but a small part of the book (R. 152-154) and based on the title the average non-historian might expect more namespecific historical material (R. 137, 138).

CONCLUSIONS OF LAW

1. The meaning of an advertising representation is to be judged from a consideration of the 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).

2. Even though individual words and phrases in an advertisement by themselves do not mislead, all of them together may convey a false impression. U. S. Zip Code Service, Postal Service Decision, P.S. Docket No. 2/171 (1974).

3. The average person reading Respondents' advertisements would interpret them substantially as characterized in subparagraph 3(a) of the Complaint as amended but would not interpret them as characterized in subparagraphs 3(b), (c), (d), and (e) of the Complaint as amended.

4. The effect of false representations is not dispelled by a money-back guarantee. Borg-Johnson Electronics v. Christenberry, supra, Farley v. Heininger, 105 F.2d 85 (D.C. Cir. 1939).

5. The fact that there are satisfied customers is irrelevant to the issue of liability under 39 U.S.C. § 3005. Farley v. Heininger, supra..

6. In their Pre-Hearing Memorandum, Respondents contend that the titles of their publications are protected by the First Amendment of the Constitution. However, Constitutional guarantees against restrictions of freedom of speech do not protect false advertisements. Donaldson v. Read Magazine Inc., supra. United States Postal Service v. Beamish, 466 F.2d 804, 807 (3d Cir. 1972).

7. The representation specified in subparagraph 3(a) of the Complaint is materially false. Complainant has failed to prove that Respondents made the representations alleged in subparagraphs 3(b), 3(c), 3(d), and 3(e) of the Complaint.

Therefore, I conclude that Respondents are engaged in conducting a scheme for obtaining money through the mails by false representations in violation of 39 U.S.C. § 3005 and that a False Representation Order, substantially in the form attached, should be issued against Respondents.