In the Matter of the Complaint Against

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

and

KURT SCHNEIDER

P.S. Docket No. 22/113

Finn, James D. Jr.

APPEARANCES FOR COMPLAINANT:
SandraC. McFeeley, Esq.
Richard T. Cooper, Esq.
Timothy J. Mahoney, Esq.
Law Department
Consumer Protection Division
United States Postal Service
Washington, DC 20260-1112

APPEARANCES FOR RESPONDENT:
Edward L. Norwind, Esq.
1814 N Street, NW
Washington, DC 20036-2404

Murray Mackson, Esq.
533 Delaware Avenue
Palmerton, PA 18071-1910

POSTAL SERVICE DECISION

Complainant and Respondents have timely appealed from the Initial Decision of an Administrative Law Judge finding that Respondents are in violation of 39 U.S.C. § 3005. Specifically, the Administrative Law Judge found that Respondents have made false representations in violation of 39 U.S.C. § 3005 in connection with the sale of "family heritage" books.

Background

The Consumer Protection Division, Law Department, United States Postal Service (Complainant), initiated this proceeding by filing a Complaint which alleges that Respondents, in unsolicited mailings to various members of the public, make the following false representations:

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

The Complaint also alleges, and Respondents admit, that Respondent Kurt Schneider directs and controls the activities of Respondent Beatrice Bayley, Inc.

Respondents, in their Answer, deny making representations 4(a), (b), (d) and (e), above. With respect to representation 4(c), Respondents admitted that their "...promotional material represents 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 deny that any of the representations in the Complaint are false.

At a hearing before an Administrative Law Judge, both sides presented evidence. Complainant presented exhibits and the testimony of Virginia Steele Wood, an expert in the field of geneology and in the field of library and information science; and two lay witnesses: Raymond Richard McKenzie and Robert H. Colcock. Respondents presented exhibits and the testimony of Phillip W. McMullen, an expert in the field of geneology; Dr. Richard T. Ettenson, an expert in the field of cognitive research psychology, specializing in consumer behavior; Dr. Eric J. Zanot, an expert in the fields of advertising and advertising regulation; Dr. Amy Weinberg, an expert in the field of psycholinguistics; and three lay witnesses: Frederick G. Leinker, Janice Holt Baell, and Respondent Kurt Schneider.

Following the hearing and after the filing of proposed findings of fact and conclusions of law, the Administrative Law Judge issued his Initial Decision in which he concluded that Respondents had made the representations alleged in Complaint paragraphs 4(a), (b), (c) and (e), above, and that those representations are false.

Based on his findings and conclusions that Respondents are in violation of 39 U.S.C. § 3005, the Administrative Law Judge recommended the issuance of a false representation order and a cease and desist order against Respondents.

Respondents' Exceptions

It is noted initially that Respondents have not taken exception to any of the Administrative Law Judge's findings with respect to the allegations contained in paragraph 4(c) of the Complaint. A review of the record supports the conclusions reached by the Administrative Law Judge with respect to this allegation and his conclusions are affirmed.

Exception One

"Respondents Take Exception to the Administrative Law Judge's Conclusion of Law No. 7 That the Ordinary Person Reading Respondents' Advertisements Would Interpret Them as Making the Representations Alleged in Subparagraphs 4(a), (b), and (e)."

A. Representation 4(a)

In his Initial Decision the Administrative Law Judge found that Respondents' solicitations specifically make the representation that each "family heritage book" concerns exclusively or almost exclusively the named family. In so doing, the Administrative Law Judge relied on the overall impression conveyed to him by the name-specific language used in the solicitation as well as on testimony by Complainant's two lay witnesses, each of whom testified that he believed he was being offered a book specifically about his ancestry and family name. The Administrative Law Judge weighed this evidence against the testimony of Respondents' expert and lay witnesses. The Administrative Law Judge found the testimony of Respondents' lay witnesses to be somewhat "confused" and "self-contradictory," in addition to being generally less reliable than the testimony of Complainant's witnesses. The Administrative Law Judge also found Respondent's expert witnesses unpersuasive on this issue. He found that the general references to the development of family crests and the origin of family names did not counteract the representation made by the solicitation as a whole that the book almost exclusively refers to the named family.

Respondents argue in particular that the Administrative Law Judge arbitrarily discounted the testimony of Dr. Weinberg, Respondents' expert in the field of psycholinguistics, to the effect that the reasonable person, upon reading the solicitation, would expect a book containing a combination of general and specific information about families. The Administrative Law Judge considered the testimony of Dr. Weinberg, but concluded that the repeated use of surname-specific references counteracted any effect that the limited amount of more general language referred to by Dr. Weinberg might have on the overall representation made by the solicitation. As the Administrative Law Judge correctly stated, no expert testimony is needed to interpret an advertisement's effect on the ordinary mind. While the presiding officer may hear testimony on the subject, the question is one which may be determined by the presiding officer without reference to such testimony. 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). A review of the record indicates that the Administrative Law Judge correctly determined that this representation is made.

B. Representation 4(b)

In his Initial Decision, the Administrative Law Judge found that Respondents' solicitation does represent that, "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." In so finding, the Administrative Law Judge relied on two sentences in the solicitation, which read:

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.

This excerpt appears to be capable of more than one reasonable interpretation. The meaning assumed by Complainant in paragraph 4(b) of its Complaint and also adopted by the Administrative Law Judge is that the second sentence states that Respondents have located every individual member of every family with a particular surname--i.e., every person belonging to every family with, for example, the surname "Hunt" (CX-4). However, another reasonable meaning of the sentence is that Respondents have located every individual member of the particular "Hunt" family to whom the solicitation was directed--e.g., the Kal K. Hunt family. A third meaning is that Respondents have located every family with the particular surname. In the third meaning the word "member" is used not to designate a single person, but rather to designate a single family from among all the families with the particular surname--e.g., the Kal K. Hunt family as a member of the universe of all Hunt families in the United States. The language on the second side of the solicitation, likewise, contributes to the ambiguity. Among the promised contents of the "(surname) family book" is "a directory of almost every (surname) family."

It is concluded that the three interpretations, one of which is the Administrative Law Judge's, are reasonable. Accordingly, it was reasonable for the Administrative Law Judge to find that the advertisement makes the representation set out in paragraph 4(b) of the Complaint.

C. Representation 4(e)

The Administrative Law Judge concluded that the solicitation did represent that:

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.

The Administrative Law Judge based his conclusion on the language found in the solicitation referring to "my findings" and "my work" and stating that "I am going to publish . . ." and that "I have located." The solicitation contains the name Beatrice Bayley at the location where one would expect to see a signature, thereby creating the strong impression that Beatrice Bayley has performed the research and created the "(surname) Family Heritage Book."

Respondents argue primarily that the fact that the mailing address on the solicitation, Beatrice Bayley, Inc., indicates that the book is a corporate endeavor and not necessarily the work of Beatrice Bayley as an individual. However, it is clear that this single reference to the existence of a corporate entity does not even begin to counteract the impression created by the language described above that the book is the product of the personal work of Beatrice Bayley. The impact of the corporate name in the mailing address, as slight as it may be to start with, is even further lessened by the fact that the purchaser is directed to make his or her check payable to "Beatrice Bayley," and not to "Beatrice Bayley, Inc."

Accordingly, it is clear that the solicitation does make the representation set out in paragraph 4(e) of the Complaint.

Exceptions Two - Five

In these exceptions, Respondents have challenged the Administrative Law Judge's conclusions of law numbered 11, 13, 14 and 15 and the findings of fact which support them. The challenged conclusions of law state that the representations specified in subparagraphs 4(a), (b), (c) and (e) of the Complaint are both material and false; that Complainant has established its case by a preponderance of the competent, reliable and probative evidence of record; and that 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. In support of these exceptions, Respondents, in effect, merely incorporate the discussions and arguments which they presented under Exception Number One.

The arguments made by Respondents do not address the question of the falsity of the representations made by the solicitation. However, a review of the record supports the Administrative Law Judge's findings that the representations alleged in paragraphs 4(a), (b), (c) and (e) of the Complaint are false.

With respect to the materiality of the representations, Respondents only challenge the Administrative Law Judge's findings concerning representation 4(e)--i.e., that the advertisement represents that the books are the products of exhaustive research by Beatrice Bayley. Respondents' argument that this representation is immaterial is based on testimony by two of Respondents' lay witnesses that it was not important to them whether a particular individual did the research for their books. Respondents' position concerning the materiality of this representation has some merit. It seems unlikely that, viewed alone, the representation that the "family heritage" has been thoroughly researched by Beatrice Bayley, a retired schoolteacher, would induce a reader to purchase the book. However, when read in conjunction with the other representations in the advertisement, it would add weight to those representations by making the book seem generally more attractive to some people and would tend to induce the reader to purchase the book. Thus, in the context of the entire advertisement the representation is material. N. Stimpson, P.S. Docket No. 11/80 (P.S.D. April 30, 1982).

Exception Six

"Respondents Take Exception to the Administrative Law Judge's Failure to Grant Their Motion to Strike and For Mistrial."

By motion filed on February 28, 1986, Respondents moved for an order striking a portion of Complainant's proposed findings of fact and conclusions of law and declaring a mistrial in this case. The basis for Respondents' motion was the inclusion in Complainant's proposed conclusion of law number 19 of a reference to and an excerpt from a hearing on a related matter--i.e., a hearing on Respondents' alleged breach of a consent order, which order was used to resolve earlier enforcement proceedings against Respondents' use of similar advertisements.

In his Initial Decision, the Administrative Law Judge denied Respondents' motion for a mistrial. In so doing, he stated that he had not considered the proposed conclusion or the attached transcript pages in formulating his Initial Decision. He also stated that his decision in this case was rendered solely based on the evidence and cases as set out in the Initial Decision.

From an examination of the record, it is clear that the transcript excerpt was never admitted into evidence. Absent a showing of bias toward Respondents, and there has been no such showing, the mere exposure of the Administrative Law Judge to facts which might not properly be admitted into evidence does not provide grounds for disqualification of a trial judge. See, Withrow v. Larkin, 421 U.S. 35 (1975).

The Administrative Law Judge is presumed to be capable of disregarding information, from whatever source, which is irrelevant or otherwise inadmissible in the current proceeding. Clark v. United States, 61 F.2d 695, 708 (8th Cir. 1932). There is no indication in the Initial Decision that the Administrative Law Judge was influenced in any fashion by his knowledge of the other proceeding. Absent any indication that the Administrative Law Judge was influenced by his awareness of the other proceeding, his decision to deny the motion for a mistrial will not be overruled.

Complainant's Exception

In his Initial Decision, the Administrative Law Judge found that the solicitation did not make the following representation alleged by Complainant:

(d) Each edition of "The (name of family) Family Heritage Book" sold by Respondents is unique in its entirety.The Administrative Law Judge's conclusion was that, although the solicitation represents that much of the information in the book would be unique to the named family, there is also language indicating that some of the material would be more general. In particular, the Administrative Law Judge pointed to the language concerning "the development of family crests" and "the origins of family names" as indicating that some of the information would apply to families other than the named family.

Complainant argues that the Administrative Law Judge has confused the phrase "in its entirety" with the word "entirely." Complainant first argues that a dictionary definition of "in its entirety" is "as a whole" and that what the allegation means is that Respondents' solicitations represent that one edition, e.g., the Colcock book, is unique "as a whole" when compared to another edition, e.g., the McKenzie book. For its definition of "as a whole" Complainant then draws an analogy to cases decided under 39 U.S.C. § 3005 which hold that while individual parts of an advertisement may say one thing, the ad "as a whole" (i.e., in its entirety) may say something different. See, Donaldson v. Read Magazine, 333 U.S. 178 (1948). Thus, Complainant argues, for an advertisement in its entirety (as a whole) to be false does not require that each and every part of the advertisement be false. Similarly, Complainant argues that in order for the representation to be made that each edition of a book is unique in its entirety, it does not have to be represented that each and every part of each edition is unique.

The interpretation which Complainant is attempting to give to its own allegation appears to be strained, contrary to the allegation's plain meaning, and contrary to the interpretation given it by Complainant in a number of its proposed findings of fact (see Complainant's proposed findings of fact 44-46). The plain meaning of allegation 4(d) is that the advertisement represents that each part of each edition of the book will be different. Complainant's current interpretation of its allegation appears to be that the advertisement represents that most, or nearly all, or almost all, of the parts of each edition of the book will be unique to the named family. This, however, is simply another way of stating what is already found in allegation 4(a)--i.e., that,

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

The Administrative Law Judge's reading of allegation 4(d) is reasonable, reflects what appears to be the allegation's plain meaning, and comports with the reading ultimately given it by Respondents in defending against the Complaint. The Administrative Law Judge's conclusion with respect to allegation 4(d) is also reasonable. There appears to be sufficient language in the solicitation to alert the ordinary reader to the fact that some parts of the book may be generic rather than unique to the reader's family. Accordingly, the Administrative Law Judge's decision on this allegation is affirmed.

Conclusion

After a consideration of the entire record, it is concluded that the Administrative Law Judge correctly found that Respondents are engaged in a scheme to obtain money or property through the mail by means of materially false representations. Accordingly, the orders authorized by 39 U.S.C. § 3005 and recommended by the Administrative Law Judge for issuance against Respondents are issued herewith.