In the Matter of the Complaint Against

BEATRICE BAYLEY, INC.
Post Office Box 55
Sterling, PA 18463-0055

and

KURT SCHNEIDER

P.S. Docket No. 22/113;

Bernstein, Edwin S.

APPEARANCES FOR COMPLAINANT:
Sand ra C. McFeeley, Esq.
Richard T. Cooper, Esq.
Timothy J. Mahoney, Esq.
Consumer Protection Division
Law Department
United States Postal Service
Washington, D.C. 20260-1100

APPEARANCES FOR RESPONDENTS:
Edward L. Norwind, Esq.
Paulson, Nace & Norwind
1814 N Street, N.W.
Washington, D.C. 20005

Murray Mackson, Esq.
533 Delaware Avenue
Palmerton, Pennsylvania 18071

                           BEFORE: Judge Edwin S. Bernstein

INITIAL DECISION

Respondents sell "family heritage" books. Complainant alleged and Respondents denied that Respondents are engaged in a scheme to obtain money through the mail by false representations in violation of 39 U.S. Code § 3005. Complainant alleged that Respondents make the following false representations:

(a) Each "family heritage" book sold by Respondents concerns exclusively or almost exclusively the family named in its title;

(b) Each "family heritage" book sold by Respondents contains a directory of almost every member of the family named in its title in the United States;

(c) Some of the family names in the title "The (name of family) Heritage Book" are rare to the extent that there is only one family member for every 250,000 Americans;

(d) Each edition of "The (name of family) Family Heritage Book" sold by Respondents is unique in its entirety; and

(e) The contents of each "family heritage" book which concern the family named in its title are the product of exhaustive research conducted by Beatrice Bayley, a retired schoolteacher.

In their November 6, 1985 Answer, Respondents denied that their advertisements make the representations alleged in (a), (b), (d), and (e). With respect to alleged representation (c), Respondents admitted that their promotional materials represent that "some of the families named in the title are rare to the extent that there is only one family for every 250,000 Americans." Respondents denied that any of the alleged representations are false.

A hearing was held in Washington, D.C., on December 10 and 11, 1985. Both sides presented testimonial and documentary evidence and filed proposed findings of fact and proposed conclusions of law. All of 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 FACTS

The parties stipulated and I find:

1. Respondent Beatrice Bayley, Inc. ("BBI") was incorporated in Pennsylvania in 1979. It has offices and its principal place of business on Airport Road, Sterling, Pennsylvania 18463. In addition, BBI does business at Box 55, Springhill Road, Sterling, Pennsylvania 18463. BBI does business under its own name and under the name "Beatrice Bayley."

2. Respondent Kurt Schneider is president, a director, and a 50% shareholder of Beatrice Bayley, Inc. He directs and controls the business activities, including the design and content of advertising materials, of BBI. He is not a genealogist.

3. Since at least 1980 and continuing to the present time, BBI has been engaged in the promotion and sale of books which it describes as family heritage books.

4. BBI solicits the remittance of money through the mail by means of advertisements substantially similar to Complainant's Exhibit 1 ("CX-1").

5. The following exhibits are copies of direct mail solicitations sent by Respondents to the following persons at approximately the date shown in each exhibit:

CX-1 Robert H. Colcock

CX-2 N.L. Hancock

CX-3 Aduanal G. Agencia

CX-4 Kai K. Hunt

CX-5 Carl R. Hansen

CX-6 Enid M. Shaw

CX-7 Rosa A. Lopez

CX-8 Frank B. O'Brien

CX-9 Arthur S. Gray

CX-10 Louis A. Cohen

CX-11 Arthur Webb

CX-12 Ray Ross

CX-13 Aldor Rose

CX-14 Elmer R. Olson

CX-15 R. Delong

6. The Harrison Family Heritage Book (CX-20) and the Migita Family Heritage Book (CX-21) are produced by BBI.

7. The Maddox Family Heritage Book (CX-18) and the Mays Family Heritage Book (CX-10) are produced by BBI, and were offered for sale by Respondents in 1985.

8. Respondents did not research the family tree of the Colcock family prior to sending the solicitation shown at CX-1 to Robert H. Colcock.

9. The books identified as CX-17 through 21 are typical of books produced by Respondents to persons responding to direct mail solicitations during calendar years 1983 through 1985.

10. The text of the family heritage books identified as CX-17 through 21 differs from one book to another only to the extent that (a) the titles of the books feature different family names; (b) certificates included in the books bear different names, addresses, certificate numbers and certificate dates; (c) each book contains a different reference directory of family names; and (d) each book contains a different page with a breakdown of family names by state. Otherwise, the text of each family heritage book furnished by BBI is substantially identical.

11. The Beatrice Bayley mentioned in Respondents' postcard solicitation is Beatrice Bayley Schneider, who is the mother of Kurt Schneider. She is not a genealogist. She did not spend thousands of dollars and months of work researching through seventy million families. Beatrice Bayley Schneider did not investigate the location of Colcock family members in the United States, and she did not conduct any research into the rarity of the Colcock family name.

12. Beatrice Bayley Schneider did not investigate the location of any family name featured in the title of family heritage books offered for sale to the addressees of CX-1 through CX-15. Beatrice Bayley Schneider did not investigate the location or rarity of any family name featured in the title of family heritage books offered for sale during 1984 and 1985.

I further find as follows:

I. Respondents' Use of the Mail

Respondents sell their "family heritage" books through direct mail advertising and solicit remittances of money through the mail by means of advertisements substantially similar to CX-1. Respond ents admitted this in Paragraph 3 of their Answer and in their stipulations.

II. The Advertising Representations

Respondents' only advertising solicitation in evidence is CX-1. A copy of that exhibit is included as an appendix to this decision. The exhibit consists of the front and reverse sides of a post card which, with changes in names, was sent to individuals whose orders were solicited. Upon considering CX-1 and other evidence and apply ing applicable principles of law, with respect to the representa tions alleged in Paragraph 4 of the Complaint I find as follows:

(a) Each "family heritage" book sold by Respondents concerns exclusively or almost exclusively the family named in its title.

I find that Respondents' solicitation represents that the book offered concerns almost exclusively the family named in its title. Although "family" has different definitions, this representation is made regardless of which definition is used.

The word "exclusive" has been defined as follows:

"not admitting of something else . . . shutting out all others from a part or a share ..."

The Random House Dictionary of the English Language, Unabridged Edition, 1967.

"Limiting or limited to possession, control or use (as by a single individual or organization or by a special group or class)" Webster's Third New International Dictionary, Unabridged, G. & C. Merriam Company, 1968.

Not admitting of the existence or presence of something. The Compact Edition of the Oxford English Dictionary, Oxford University Press, 1971.

Although the postcard does not use the words "exclusive" or "exclusively", other language in the solicitation makes the repre sentation. The solicitation explicitly informs the addressee that the book is about his or her family. The book is referred to in the solicitation as the "(surname) Family Heritage Book," the "(surname) Heritage Book" and the "Unique (surname) Family Book." In each instance, the addressee's surname is emphasized by bold lettering. This bold lettering focuses the reader's attention upon the surname and helps to convey the impression that the book is about his or her family. This impression is reinforced by repetition. The addressee's last name appears 11 times in this brief solicitation.

The impression that the book is almost exclusively about the addressee's family also is reinforced by other information in the solicitation. The reader is told that the (surname) book "will lead you through the discovery and documentation of your personal and family heritage." Emphasis added . The third paragraph states that after exhaustive research the writer of the card has "located almost every (surname) member in the United States." The next paragraph again focuses on the surname of the addressee, stating that it is a very rare name. On the other side of the card, the reader is told the book is to be registered in the recipient's name, serially numbered and accompanied by a Certificate of Authenticity. He is also told that the book contains a "directory of almost every (surname) Family" and that the book is unique. Of the 11 times that the recipient's surname appears in the postcard, six times it is further emphasized by appearing in bold lettering.

Although the reverse portion contains two descriptions which relate to other than the addressee's name - "The development of family crests" and "The origin of family names," - this material appears to be less significant than the name-related material, especially since this language is adjacent to other language which refers to the addressee's name.

This name-related language is:

"The UNIQUE (SURNAME) FAMILY BOOK CONTAINS:

* A directory of almost every (Surname) Family

* The history of our origins in the U.S."

The "our" in the latter phrase could reasonably be interpreted by many ordinary readers to mean their family.

The overall effect of this language is to convey the impression to the reader that the offeror has done research on him, his name and his relatives, and is offering to him a book that contains the results of this research: information almost exclusively about his family; and that the product offered is something personal, dealing with his family's heritage, as opposed to some other family's heritage. The testimony of the witnesses did not cause me to alter this view or my views regarding the other alleged representations based upon my reading of the solicitation.

Mr. Raymond R. McKenzie, an accountant with an important accounting firm, testified for Complainant. I found him to be a credible and intelligent witness. Mr. McKenzie stated that, based upon his reading of the solicitation, he thought that he was being offered a book specifically about his ancestry and family name (Tr. 25-26, 41). He believed that his individual family heritage had been researched, and was being offered to him for $30. (Tr. 55). He was disappointed that the book was not specifically related to his ancestry, as he had expected (Tr. 43-44). He did not expect that the book he was to receive would contain the same contents as a book sent to a person with a different surname (Tr. 27). He expected that the contents of the book would relate to his family; not to any other. For example, he understood the phrase "our origins in the U.S." in the solicitation to refer to his family, the McKenzies (Tr. 62).

Mr. Robert H. Colcock, an accounting technician for the District of Columbia, also testified for Complainant. He also impressed me as being intelligent and credible. Mr. Colcock testified that, based on the solicitation, he expected to receive a family genealogy listing his ancestors and relatives back to Captain John Colcock of Charleston, South Carolina, together with corresponding dates, places and other information (Tr. 67-68, 76, 78). He interpreted the phrase "family heritage" in the solicitation to refer to his family's genealogy (Tr. 79-80). He understood the title of the book, "The Colcock Family Heritage Book" to mean a book exclusively about his family, the descendants of Captain Colcock (Tr. 79-81). He understood the phrase "the history of our origins in the U.S." to refer to the origins of his family (Tr. 85).

I found Respondents' lay witnesses, Mr. Frederick G. Leinker and Mrs. Janice H. Baell to be less reliable. Neither of these witnesses were as representative of the target group for the solici tation. Respondent Kurt Schneider agreed that the target group are "individuals more educated within single family homes having slightly higher income" (Tr. 309). Neither of these witnesses' education extended beyond high school.

Additionally, Mr. Leinker appeared to be confused. When asked if he expected the book sold to concern the family named in the title, he did not answer the question but instead repeated an earlier answer to the effect that one should not expect more than what was received from approximately $29. (Tr. 238). Later, he stated that he thought the book was unique in its entirety because "Its a very good book. It explains everything." (Tr. 242).

Mrs. Baell's testimony with respect to allegation 4(a) was self-contradictory. Although she stated that the solicitation did not give her the feeling that the product in question would pertain exclusively or almost exclusively to her family name (Tr. 255), the only basis that she provided to support this opinion were statements in the solicitation which relate exclusively to the Baell family name. Specifically, she referred to the mention of a directory and "information about running down your family name (Tr. 256). The first reference appears to be to the phrase "a directory of almost every Baell Family," contained in the solicitation. This reference clearly pertains to no family but the Baells (Tr. 264-65). The second reference was to the sentence that says "It will lead you through the discovery and documentation of your personal and family heritage" (Tr. 262-64). As Ms. Baell later admitted, this statement also refers to the Baell's personal and family heritage (Tr. 264).

Mrs. Baell's interest in being able to locate a listing of Baell names appeared to color her expectations when she read the postcard and to cloud her evaluation of the book. Four times in her testi mony she emphasized that her main interest in reading the postcard was to determine if the product would contain a directory of persons named Baell (Tr. 256, 258, 270, 274).

Dr. Amy Weinberg testified for Respondents as an expert in psycholinguistics. Upon analyzing the postcard's language, Dr. Weinberg concluded that it would mean to the average reader that "there would be a combination of specific and general information related to the genealogy of the family" (Tr. 333). However, as I have previously found, although there is reference to the develop ment of crests and the origin of family names, in view of the solicitation's strong emphasis upon name-specific information, these two types of general information do not counteract the representa tion that the book almost exclusively refers to the named family.

Dr. Richard T. Ettenson, a cognitive research psychologist who testified for Respondents, made some hasty conclusions from which he subsequently retreated. At first, he stated that in his opinion, the solicitation was not false or misleading (Tr. 173). However, he later agreed that he had no basis upon which to judge the truthful ness of the solicitation's statements regarding surname rarity and about the contents of the directory (Tr. 187-89). Moreover, although at first Dr. Ettenson testified that the wording of the solicitation was "reasonably straightforward" (Tr. 181), later he conceded that the postcard's language was ambiguous (Tr. 194-95). Also, despite Dr. Ettenson's testimony that he had available to him a variety of research tools for analyzing the solicitation's effects on readers (Tr. 190-94), he stated that the only research he did involving readers of the solicitation was to engage in a casual conversation with his girlfriend's cousin (Tr. 192, 195-97).

Dr. Eric J. Zanot, an Associate Professor of Marketing at the University of Maryland, also testified for Respondents. Although Dr. Zanot listed many research tools for analyzing a solicitation's effect on readers, he did not directly apply any of them to Respondent's solicitation (Tr. 226-30). The only research he did concerning actual readers was to recall his own experience of having encountered a Zanot book purchased by another person (Tr. 229-30). His expert testimony, like that of Dr. Ettenson, is therefore founded solely on his own reading of the solicitation and is merely his opinion regarding the possible reaction of other persons. Furthermore, his testimony regarding the likely interpretation of the advertisement may have been colored by his exposure to the Zanot book before he was asked to analyze the solicitation (Tr. 207).

Additionally, as with Dr. Ettenson, Dr. Zanot's testimony was concerned not with the mind of the ordinary person exposed to the solicitation, but with the mind of a "reasonable person" (Tr. 212-13). Dr. Zanot's own idea of a "reasonable person" has no clear relation to the broad class of persons protected by the false repre sentation statute.

Finally, like Dr. Ettenson, at first Dr. Zanot testified that the solicitation was not misleading (Tr. 213-14), but later conceded that he had no basis other than Respondents' representations to him upon which to judge the truthfulness of the solicitation's state ments regarding surname rarity (Tr. 222-23), whether Beatrice Bayley herself conducted research (Tr. 223), and the contents of the directory (Tr. 219-22).

Mr. Phillip McMullen also testified for Respondents. Mr. McMullen is a full time accountant who also operates a genealogical research organization (Tr. 140). Mr. McMullen, however, offered no testimony on this issue other than to state that there is no information in the book that pertains exclusively to the family named in the book.

(b) Each "family heritage" book sold by Respondents contains a directory of almost every member of the family named in its title in the United States.

Upon reading Respondents' solicitation as a whole, I find that the advertisement makes this representation.

The first page states:

"Thousands of dollars and months of work went into researching through 70 million families. From this I have located almost every (surname) member in the United States."

Although the reverse side promises a directory of almost every (surname) family rather than family member, this statement is not clear enough to erase the impression that, based upon the earlier statement, a listing of each family member will be included. Mr. Colcock, an intelligent man, apparently thought that he would receive such a list of Colcock family members (Tr. 67).

(c) Some of the family names in the title "The (name of family) Heritage Book" are rare to the extent that there is only one family member for every 250,000 Americans.

This representation clearly is made in the solicitation, which reads:

"My findings show the (surname) name is very rare. Only about one citizen for every quarter million Americans belongs to the (surname) family."

Respondents did not deny that their solicitation makes the representation.

(d) Each edition of "The (name of family) Family Heritage Book" sold by Respondents is unique in its entirety.

I find that Respondents' advertisement does not make this representation.

The word unique has been defined as follows:

"sole, single...being the only one... one single and inimicable living thing...being without a like or equal...single in kind or excellence. Websters Dictionary, supra.

Existing as the only one or as the sole example, single, solitary in type or characteristics, having no like or equal, standing alone in quality, unequaled, unparalleled, incomparable. Random House Dictionary, supra. of which there is only one...single, sole, solitary. Oxford Dictionary, supra.

Applying these definitions, I find that the solicitation repre sents to the ordinary reader that much of the information in the book will be unique to his or her family. However, other language in the solicitation informs the ordinary recipient that some of the information will be generalized and applicable to other families. This language is "the development of family crests" and "the origin of family names." Therefore, the solicitation does not represent that the book will be unique in its entirety.

(e) The contents of each "family heritage" book which concern the family named in its title are the product of exhaustive research conducted by Beatrice Bayley, a retired schoolteacher.

It is clear and undisputed that the solicitation represents that Beatrice Bayley is a retired schoolteacher.

That the book is a product of research conducted by Beatrice Bayley personally is represented by several statements in this short solicitation. First the solicitation is a message personally addressed to the recipient. The writer is identified at the bottom where one normally signs as Beatrice Bayley. The message begins, "On projected date , I am going to publish The addressee "Family Heritage Book." After discussing thousands of dollars and months of work that have been expended, Mrs. Bayley states, "I have located almost every addressee member in the United States." She then refers to "My findings." On the reverse of the card, she continues, stating "Since retiring from school teaching, I have researched..." and, "I think you will be pleased with my work." emphasis added .

The solicitation also represents that the book is the product of exhaustive research by Mrs. Bayley. "Exhaustive" has been defined as follows:

"testing all possibilities or considering all the elements, thorough"

Webster's Dictionary, supra.

"Comprehensive, thorough" Random House Dictionary, supra.

"leaving no part unexamined or unconsidered; complete, comprehensive." Oxford Dictionary, supra.

The solicitation tells the reader that Beatrice Bayley has spent thousands of dollars and months of work researching through 70 million families across the United States. Furthermore, this research is said to have yielded the location of "almost every addressee's surname member in the United States." To the ordinary reader, such research would appear to have been exhaustive as that term has been defined, namely, thorough and comprehensive.

III. The Truth or Falsity of the Representations

I find that the representations set forth in subparagraphs 4(a), (b), (c) and (e) are false for the reasons set forth below.

(a) Each "family heritage" book sold by Respondents concerns exclusively or almost exclusively the family named in its title.

There is no dispute regarding the contents of the books mailed by Respondents to persons responding to their solicitations. Several of the books are in evidence (CX-17-CX-21). The parties stipulated that these exhibits are typical of the books produced by Respondents during 1983 through 1985. The parties further stipulated that Respondents' books differ from one another only with respect to the surname featured in the title, the surname and other minor information on each book's certificate, the directory of surnames contained in each, and the page showing the distribution of names by state. The remainder of each book is generic and does not concern each addressee's family.

Of the four items mentioned above as being different for each book, only the certificate exclusively relates to the family named in the title. The directory contained in each book consists only of a list of persons bearing the same last name as the family named in the title. Respondent Kurt Schneider acknowledged that these persons are, in reality, heads of households (Tr. 290, 315). There is no indication that the persons listed are related to the family named in the title. As Ms. Virginia S. Wood, Complainant's expert witness in genealogy and library science, testified, the directory is in no sense a genealogy (Tr. 122-25). The distribution of names by state appears to be a summary of the directory. It also is not exclusive to the addressee's family.

Since only one page of the book concerns exclusively the addressee's family, it is clear that each book sold by Respondents does not concern almost exclusively the family named in its title.

(b) Each "family heritage" book sold by Respondents contains a directory of almost every member of the family named in its title in the United States.

The directory included in each book does not include every member of the addressee's family in the United States. First, as Mr. Schneider admitted, the directory reportedly includes only heads of households, not other household members (Tr. 290, 315). Thus, unless a person with the addressee's surname is a head of household, he will not be listed (Tr. 158-59). Second, not every head of household bearing the addressee's surname is related to the addressee. The directory may contain names of descendants of persons not born with that name who changed their surnames to that of the addressee, through marriage or other means (Tr. 125, 157, 160, 161). Third, persons who are related to the addressee will not be listed because they or their ancestors have changed their surname from that of the addressee through marriage or other means (Tr. 71-72). It is thus clear that the directory is not designed to list and does not list almost every member of the family named in its title.

(c) Some of the family names in the title "The (name of family) Heritage Book" are rare to the extent that there is only one family member for every 250,000 Americans.

Mr. Schneider admitted that the language used in Respondents' solicitation is misleading with respect to its representations of rarity of surnames (Tr. 296-298). According to Mr. Schneider, the statement in the card that "only about one citizen for every quarter million Americans belongs to the addressee's surname family" should read "there is about one addressee's surname family for every quarter million Americans." (Tr. 296-298).

Other material in evidence further demonstrate the falsity of the representation. Complainant, through Virginia S. Wood, its expert witness in the areas of genealogy and library science, introduced into evidence several reference works (Tr. 109-121). Three of these, CX-23, CX-24, and CX-25, are United States Bureau of the Census reports containing population figures for the years 1974, 1970 and 1980. The fourth document, CX-22, is a report published in 1974 by the Social Security Administration containing information on common surnames (Tr. 113, 116, 119, 121).

According to the census reports, the total U.S. population in 1974 was 211,894,000 (CX-23 at 5, Tr. 115); the total in 1970 was 203,193,774, of whom 199,652,224 were citizens (CX-24 at 1-599, Tr. 120-21); and the total in 1980 was 226,545,805, of whom 6,969,431 were not citizens, leaving 219,576,374 total citizens (CX-25, Tr. 117-118).

Based upon these figures, one can estimate 1985 total citizens to be at least as numerous as in 1980: 219,576,374. If only one citizen for every quarter million Americans has the addressee's surname, as represented, there would be only 878 citizens with that surname (219,576,374 divided by 250,000). Even if one assumes very rapid growth in citizenship since 1980 to 250,000,000 citizens in 1985, there would be no more than 1000 citizens with a given addressee's surname in 1985 if Respondents' representation was true.

The Social Security report on common surnames demonstrates that these rarity representations are false. Among the surnames about which Respondents have made the rarity claims are Colcock, Rose, Hunt, Hansen, Shaw, Lopez, O'Brien, Gray, Cohen, Webb, Ross, Olson, and Delong (CX-1 - CX-15). Many of these names are listed in the Social Security report as being among the most common surnames in the United States population (CX-22 at 42-80, Tr. 111). For example, the name Lopez is listed as appearing on 254,535 Social Security cards issued between the years 1936 and 1974 (CX-22 at 63, Tr. 111). It is the 65th most common name in the country. The name Cohen is listed as appearing 117,680 times (CX-22 at 48., Tr. 110-111). The names Gray, Ross, and Webb appear 239,604, 231,054 and 160,392 times, respectively (CX-22 at 56, 72, 78). It is apparent that the large distributions of these common names among the population are inconsistent with Respondents' representations that only 878 (or even 1000) citizens have these surnames.

Respondents have attempted to challenge the value of the Social Security report by arguing that the totals include some individuals who have died (Tr. 293). This report is the most current informa tion publicly available on common surnames (Tr. 112). It is unlikely that the totals in the report have decreased dramatically since 1974, since although some persons of a given surname may have died, others would have been born with that surname (Tr. 113). In a time of generally increasing population such as the period since 1970, one might expect the totals to increase. It is thus reason able to conclude from the report that, even correcting for the presence of deceased persons, a name as common as Lopez or Cohen would continue to be borne by persons numbering in the hundred thousands, frequency figures far in excess of Respondents' repre sentation of only 848 or 1000 citizens. The report, therefore, clearly demonstrates the falsity of Respondents' rarity representa tions.

(e) The contents of each "family heritage" book which concern the family named in the title are the product of exhaustive research conducted by Beatrice Bayley, a retired schoolteacher.

Respondents stipulated that Beatrice Bayley did none of the research on the ndividual family names involved in the books sold by Respondents; that she did not spend thousands of dollars and months of work researching through 70 million families; that she did not investigate the location of any family name featured in the title of family heritage books offered for sale to the addressees of the solicitations depicted in CX-1 through CX-15; and that she did not investigate the location or rarity of any family name featured in the title of family heritage books offered for sale during 1984 and 1985.

Kurt Schneider admitted that his mother, Beatrice Bayley Schneider, has not done the advertised research, but has been involved only in writing generic portions of the book (Tr. 285) and in developing corporate "approaches" and "attitudes" (Tr. 306). Furthermore, no one in Beatrice Bayley, Inc. does the advertised research. Mr. Schneider frankly admitted that "researching through 70 million families and spending thousands of dollars a month of work on a particular family is not something that we do" (Tr. 306).

Thus, although Beatrice Bailey is, in fact, a retired school teacher, the stipulations and Mr. Schneider's testimony demonstrate the falsity of Respondents' claim that the books' contents are the product of Beatrice Bayley's exhaustive research.

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), Rev'd on other grounds, 256 F.2d 681 (2d Cir. 1958); Borg-Johnson Electronics, Inc. v. Christenberry, 169 F. Supp. 746 (S.D.N.Y. 1959). Express representations are not required. It is the net impression that the advertisement is likely to make upon purchasers to whom it is directed that is important. 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 false representation statute is applicable. G.J. Howard Co. v. Cassidy, 162 F. Supp. 568 (E.D.N.Y. 1958). See also, Virginia State Board of Pharmacy v. Virginia Citizens Council, 425 U.S. 748 (1976); Vibra-Brush Corp. v. Schaffer, supra; Aronberg v. F.T.C., 132 F.2d 165, 167 (7th Cir. 1942).

2. An advertisement 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 the advertisement is composed or purposefully printed in such a way as to mislead. Donaldson v. Read Magazine, supra.

3. Whether a representation is made in an advertisement need not be based solely on the precise words of the advertisement. Baslee Products Corp. v. United States Postal Service, 356 F. Supp. 841 (D.N.J. 1973). It is not each separate word or a clause here and there of an advertisement that determines its force, but the totality of its contents and the impression of the entire advertisement upon the general populace: Donaldson v. Read Magazine, supra, at 185-6; Gottlieb v. Schaffer, 141 F. Supp. 7, 17 (S.D.N.Y. 1956).

4. It is not difficult to choose statements, designs and devices which will not deceive. United States v. 95 Barrels of Vinegar, 265 U.S. 438, 443 (1924). Advertisements capable of two meanings, one of which is false, are misleading. Bruce Roberts Co. P.S. 3/78 (I.D. 1971); Rhodes Pharmacal Co. v. F.T.C., 208 F.2d 382, 387 (7th Cir. 1953).

5. In cases involving false representations, the protection of the statute extends even to those who do not reach the level of the "ordinary mind." Gottlieb v. Schaffer, supra. The statute protects the unwary and unsuspecting, the ignorant, unthinking and credulous. In Baslee Products Corp. v. United States Postal Service, supra, the court held that a diet product's advertisements were misrepresentations "designed to capture the attention of the unwary, the unsophisticated, and the frustrated." P.853.

6. No expert testimony is needed to interpret an advertise ment's effect on the ordinary mind. The impression of promotional representations on the ordinary mind generally is a question for the presiding officer to determine and testimony on interpretation is not required, but it is within the discretion of the judge to permit such testimony. Vibra Brush Corp. v. Shaffer, supra; World Communi cations, Inc., et al., P.S. 19/33 (P.S.D. August 23, 1985); Ralph J. Galliano, et al., P.S. 19/15 (P.S.D. May 2, 1985); Standard Research Labs, P.S. 7/78, 7/86 (P.S.D. 1980).

7. The ordinary person reading Respondents' advertisements would interpret them as making the representations alleged in subparagraphs 4(a), (b), (c) and (e) but not as making the representation alleged in 4(d).

8. The effect of false representations is not dispelled by the presence of a money-back guarantee. Borg-Johnson Electronics, Inc. v. Christenberry, supra; Farley v. Heininger, 105 F.2d 79, 84 (D.C. Cir. 1939).

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

10. The jurisdiction of the Postal Service under 39 U.S.C. ? 3005 is established when it is shown that a respondent has solicited money through the mail. Proof of actual receipt of remittances through the mail by a respondent is not required. IAAIC, P.S. Docket No. 13/173 (P.S.D. December 29, 1982).

11. Representations are material if their natural tendency is to cause readers to do what the maker of the statement intends them to do, or if the representations cause the reader to do other than what he would have done had the truth been known. Chaachou v. American Central Insurance Co., 241 F.2d 889, 893 (5th Cir. 1957). The representations at issue are material because they have the effect of inducing individuals such as Mr. McKenzie and Mr. Colcock to buy a book that they would not have bought had they known the truth about its contents. Thus, it is likely that many purchasers would not have bought these books if instead of believing, as alleged in subparagraph 4(a) of the Complaint, they knew that the book consists largely of general information about persons not related to the purchaser.

Representation (b), that the book contains a directory of almost every member of the family named in its title, similarly makes the book more attractive to someone interested in that family. Such a directory would be an excellent record of family relatives and would save the reader the trouble of searching for such relatives. The directory actually provided to the purchaser, however, is simply a listing of persons with a particular surname, none of whom may be members of the family in the title. It is up to the purchaser to contact these persons to investigate family relationships. Such a directory is much less valuable than the one advertised.

Representation (c), that the family surname is a rare one, makes the book more attractive because the prospective purchaser is likely to think that finding relatives with such a rare surname is a diffi cult task, a task already performed by Respondents. The prospective purchaser may also be more inclined to buy if he thinks that persons bearing the rare surname are special, a select small group, of whom some are his relatives.

Representation (e), that Beatrice Bayley, a retired school teacher has conducted exhaustive research to produce the book, makes the book more attractive first because it gives the impression that the book is a labor of love of a particular individual of good character, not the output of a corporation. Some people, like Mr. Leinker, are suspicious of companies (Tr. 246). Additionally, the representation that the book has been thoroughly researched lends a luster of high quality to the product. This representation also combines with representations (a) and (b) to give the general impression of a well-documented study of the addressee's family relations.

13. The representations specified in subparagraphs 4(a), (b), (c) and (e) of the Complaint are false.

14. Complainant has established its case by a preponderance of the competent, reliable and probative evidence of record. S.E.C. v. Savoy Industries, 587 F.2d 1149, 1168 (D.C. Cir. 1978); Wilmont Products, P.S. Docket No. 6/46 (P.S.D. 1979).

15. Respondents are engaged in the conduct of a scheme or device for obtaining money or property through the mail by means of false representations in violation of 39 U.S.C. § 3005.

16. Broad but non-abusive discretion has been vested in the Postal Service to determine whether the public interest requires the protection of a cease and desist order against certain individuals, including the promoters of deceptive marketing schemes. Both the legislative history of the Mail Order Consumer Protection Act, codified in 39 U.S.C. ?? 3005 and 3012, and precedents involving similarly situated federal agencies support the exercise of such discretion. Senate Report No. 98-51, page 5, U.S. Code Congressional and Administrative News, Vol 9A January 1984, P. 2018. Cotherman v. F.T.C., 417 F.2d 587 (5th Cir. 1969); Benrus Watch Company v. F.T.C., 352 F.2d 313 (8th Cir. 1965).

17. Where there is evidence that an individual is responsible for the advertising used by the corporate Respondent--and misrepresentations in such advertising form the crux of the statutory violation--it is imperative that the individual be bound in his personal capacity in order to make the cease and desist order fully effective. See, Tractor Training Service v. F.T.C., 227 F.2d 420 (9th Cir. 1955), cert. denied, 350 U.S. 1005 (1956). The record establishes that Respondent Kurt Schneider is responsible for the advertising that is at the heart of this proceeding. He admitted that he prepared the copy of Respondents' advertisements (Tr. 308-09). Respondents have stipulated that, as president, director, and 50% stockholder in the corporate Respondent, Mr. Schneider directs and controls its business activities, including the design and content of Beatrice Bayley, Inc. advertising materials. It is, therefore, appropriate that Kurt Schneider be made subject to the cease and desist order.

RELIEF REQUESTED BY RESPONDENTS

At the conclusion of their proposed findings of fact, Respondents stated:

Respondents hereby take leave to request special relief in the event the Administrative Law Judge finds that any of the representations alleged in Paragraphs 4(a), 4(b), 4(c), 4(d), or 4(e) are materially false or misleading. Respondents request that specific guidelines for copy changes be included in the Initial Decision. This request is made to enable Respondents to gauge the legality of their copy before expending a great deal of money to effectuate changes that may be required. Respondents have had difficulty conducting their business because of inconsistent interpretations or suggestions they have received over the years from legal representatives of the Postal Service.

Respondents are thus requesting an advisory opinion. As held in George Ernst, Jr., P.S. Docket No. 13/88 (P.S.D. on Motion to

Revoke False Representation Orders, May 1, l984) and Paul Harvey, P.S. Docket No. 8/10 (P.S.D. on Appl. for Mod. of Mail Stop Order, August 29, l980) such relief can not be granted. In the latter case, the Judicial Officer stated:

Respondent in effect is asking for the issuance of an advance or advisory decision inasmuch as it is seeking a decision on advertising which has not been published and for which remittances are not now being received. The issuance of such a decision would have the effect of making the Judicial Officer a clearing house for proposed new advertising. This is not the function of the Judicial Officer. The functions of the Judicial Officer and the Administrative Law Judges of the Postal Service are quasi-judicial and as such are limited to adjudicating cases in which there is a justifiable controversy which could result in actual injury to a party. (See 39 C.F.R. 224.1

(c)(4)). Since Respondent's Application for Modi- fication does not raise this type of controversy, it is not appropriate for consideration by the Judicial Officer.

The Judicial Officer's refusal to issue such an advisory opinion in the Ernst case was recently upheld on appeal. See, Many Interested Savers, Inc., et al., Civil Action No. 84-304 (E.D. Ky. February 20, l986) at 16-17.

RESPONDENTS' MOTION TO STRIKE AND FOR MISTRIAL

On February 28, l986, Respondents filed a Motion to Strike and for Mistrial. Respondents argued that Complainant's Proposed Conclusion of Law 19 was improper and prejudicial and therefore a mistrial should be granted. The proposed conclusion stated that in a January 14, l986 hearing before the Judicial Officer in connection with an alleged breach of a consent agreement in another case brought against Respondents under 39 U.S.C. § 3005 for previous substantially similar advertisements, the Judicial Officer indicated that a prima facie case of breach had been established against Respondents and that it was his tentative decision that Complainant would prevail. Complainant presented this information in support of its application for issuance of a cease and desist order. Complain ant also attached a certified copy of the referenced portion of the transcript of that hearing.

The application for a mistrial is denied. I have not considered that proposed conclusion or the attached transcript pages in reach ing my initial decision. This proceeding is separate from any other proceeding. Therefore, this case is being decided based upon the evaluation of the evidence and cases described herein. Furthermore, the transcript pages indicate that the Judicial Officer had not made a final decision in that matter but merely made tentative conclu sions in denying motions to dismiss and to vacate the interim detention order. In fact, in the final portion of the transcript pages attached (Tr. 149), the Judicial Officer stated that the hearing would be rescheduled to take additional testimony.

CONCLUSION

Therefore, Respondents have violated 39 U.S.C. § 3005 and a false representation order and an order to cease and desist in the forms appended herein should be issued against Respondents.

Edwin S. Bernstein

Administrative Law Judge

March 20, 1986

Sterling, PA

Beatrice Bayley, Inc.

Post Office Box 55

Sterling, PA 18463-0055

the sale of family heritage books.

22/113 406-85-F

CEASE AND DESIST ORDER NO. March 20, 1986

RE: BEATRICE BAYLEY, INC.
and KURT SCHNEIDER
P.S. Docket No. 22/113

ORDER TO CEASE AND DESIST

IT IS ORDERED that Respondents, BEATRICE BAYLEY, INC., a corpo ration, and its officers and KURT SCHNEIDER, individually and as president of said corporation, and Respondents' agents, representa tives and employees, directly or through any corporate or other device, in connection with any enterprise by which Respondents seek the remittance of money or property through the United States mail, forthwith cease and desist from:

a. falsely representing the contents of any book, publication or other document as defined in Federal Rule of Civil Procedure 34(a)(1) (hereinafter severally or collectively referred to as "book"), including but not limited to (a) the topics, subject matter, or particular information that are contained in the book and (b) the quantum of information or scope or amount of coverage of any topic or subject matter represented to be contained in the book;

b. falsely representing the distribution of a surname in the general population or any specialized population;

c. falsely representing the identity of the author or other producer of information contained in a book;

d. falsely representing the quantum, portion, or other measure of any person's contribution to the authorship or production of a book;

e. failing to establish, maintain and make available upon reasonable request of the Postal Inspection Service written records identifying all persons, whether natural or artificial, who write, prepare, compile or otherwise contribute to the content of any book; and

f. failing to establish, maintain and make available upon reasonable request of the Postal Inspection Service written records substantiating any representation, irrespective of its truth or falsity, that is within the scope of subparagraphs b, c and d above.

Judicial Officer

DIGEST SHEET

NAME & DOCKET NO. OF CASE: BEATRICE BAYLEY, INC.

P.S. DOCKET NO. 22/113

PRODUCT: (See Table of Contents - Product Index.)

BOOKS/BOOKLETS

INDEX HEADING-INCLUDING SUBHEADING (See Topical Index-Digest -
Table of Contents.)

IMPLIED REPRESENTATIONS

DIGEST:

Respondents Family Heritage Books falsely represented that (1) each book is almost exclusively about the family named in its title (2) each book contains a directory of almost every family member in the United States (3) some of the family names are rare to the extent that there is only one family member for every 250,000 Americans and (4) the contents of each book were the product of exhaustive research of Beatrice Bayley, a retired schoolteacher.

INDEX HEADING-INCLUDING SUBHEADING JURISDICTION

DIGEST:

It is not appropriate for the Judicial Officer or an Administrative Law Judge of the Postal Service to issue advance or advisory decisions about proposed advertising. (Use additional sheets as necessary)

INDEX HEADING-INCLUDING SUBHEADING
MOOTNESS
DIGEST:

It is not appropriate for the Judicial Officer or an Administrative Law Judge of the Postal Service to issue advance or advisory decisions about proposed advertising.

INDEX HEADING-INCLUDING SUBHEADING
MOTIONS E. FOR MISTRIAL (New Heading)
DIGEST:

Reference in Complainant's Proposed Conclusion of Law to and appending of transcript pages regarding Judicial Officer tentative decision in case involving breach of consent agreement and similar issues between the parties is not basis of a mistrial. The decision in this case was based upon its own record and issues.