In the Matter of a Mail Dispute Between:

JAMES F. FOSTER
and
MIKE HOPE, LOS ANGELES COBRAS

P.S. Docket No. MD-69

Grant, Quentin E., Chief Administrative Law Judge

APPEARANCE FOR JAMES F. FOSTER: Jerry Kurz, Esq., 7 South
Dearborn, Suite 1507, Chicago, IL 60603-7308

APPEARANCE FOR MIKE HOPE: Mike Hope, Chair, Executive Committee, Arena Football Limited Partnership, 3350 Ocean Park Blvd., Suite 106, Santa Monica, CA 90405-3214

INITIAL DECISION

This mail dispute has been forwarded for resolution pursuant to Domestic Mail Manual (DMM) § 153.72 and 39 C.F.R. Part 965. The parties dispute the right to delivery of mail addressed to Arena Football, Arena Football League, or to individuals with the name Arena Football as part of the address, at 8725 W. Higgins, Suite 485, Chicago, Illinois 60631.

Mr. Hope made a timely submittal pursuant to the rules. Mr. Foster failed to do so but was allowed to file comments on the Hope submittal. Mr. Hope requested and was given the opportunity to respond to Mr. Foster’s comments. This response was filed on November 3, 1989. The documents submitted by Mr. Foster were only in part comments on Mr. Hope’s submittal as permitted by my order of October 6, 1989. To the extent that they do not constitute comments on Mr. Hope’s submittal they have been disregarded in arriving at this decision.

FINDINGS OF FACT

1. In February 1988, the Arena Football Limited Partnership (AFLP) was formed by a group of investors to operate the Arena Football League (League). The office of AFLP was at 8725 W. Higgins, Suite 485, Chicago, IL 60631.

2. The AFLP consisted originally of a general partner, American Arena Football, Inc. (American), and five limited partner corporations one of which was the Los Angeles Cobras. Disputant Foster is president of American. He was hired by AFLP to be its chief executive officer (CEO) and commissioner of the League.

3. Disputant Mike Hope is manager of the Los Angeles Cobras and chairman of the ad hoc executive committee of AFLP.

4. On January 5, 1989, pursuant to a unanimous vote of the limited partners, American was removed as the general partner of AFLP and Mr. Foster was removed as CEO of AFLP and commissioner of the League.

5. On March 12, 1989, the League announced a hiatus due to continuing disputes with Mr. Foster.

6. By notice dated February 14, 1989, Mr. Foster purported to terminate the rights of American and AFLP to use the Arena Football game system developed by him and trademarks registered by him and commanded them to delete the word “Arena” from their corporate or business names. The parties are engaged in a separate dispute about the validity of the purported termination and trademark and patent rights.

7. In May 1989, Mr. Foster created Fosterball, Inc. to operate the Arena Football League which Foster says he “reorganized” after his removal by AFLP. This league played some games in July and August 1989 using the names Arena Football and Arena Football League. It operates from the following address: 2200 E. Devon, Suite #247, Des Plaines, IL 60018. The reorganized league has never had as its business address 8725 W. Higgins, Chicago, IL.

8. The Arena Football League created by Mr. Foster after his removal by AFLP is an entity separate and distinct from AFLP and the League it operates.

9. AFLP continues to do business in connection with insurance disputes, medical bills, accounts payable and other matters.

10. On February 9, 1989, following his removal as commissioner of the League and CEO of AFLP, Mr. Foster filed with the post office a change of address order for mail addressed to Arena Football at 8725 W. Higgins, Chicago, IL 60631. He ordered that mail so addressed be sent to 3614 Walters Ave., Northbrook, IL 60062.

11. Thereafter, to counter Mr. Foster’s interference with its mail AFLP rented Post Office Box 31310, Chicago, IL 60631 and directed the Postal Service to forward to that box mail addressed to Arena Football, Arena Football League, Arena Football Limited Partnership and individuals with the name Arena Football as part of the address at 8725 W. Higgins.

12. The mail in dispute is being held by the Postal Service pending resolution of the dispute.

CONCLUSIONS OF LAW

1. The following provisions of the Domestic Mail Manual (DMM) are applicable to this dispute:

153.4 Delivery to Officials or Employees of Organizations

153.41 Mail directed to officials or employees of a government or private organization at the address of the organization will be delivered to the organization when such mail is claimed both by an officer or employee and by the organization. This also applies to mail addressed in this manner to former officials or employees.

153.42 Mail addressed elsewhere to a public or private official by title or to the organization, even though marked to the attention of a particular person or title, will be delivered to the organization, if it so directs.

2. Until Mr. Foster attempted to interfere with delivery of the mail, in early February 1989, the mailing address of AFLP, Arena Football League, and Arena Football, including that marked to the attention of individual officers or employees, was 8725 W. Higgins (Suite 485), Chicago, IL 60631. At that time, AFLP attempted to avoid the interference by renting P.O. Box 31310 and ordering the affected mail forwarded to that box.

3. As a result of his removal as CEO of AFLP and as Commissioner of the League and the removal of American as general partner by unanimous vote of the limited partners on January 5, 1989, Disputant Foster was divested of all authority to act as agent or representative of AFLP including authority to receive, or direct delivery of, the mail in dispute. Nothing in Mr. Foster’s comments on the dispute raises any substantial doubt as to the right of the limited partners to have effected his removal by their January 5 vote.

4. Likewise, nothing offered by Mr. Foster in the way of comments raises serious doubt as to Disputant Hope’s authority to act in this dispute on behalf of AFLP and to direct the delivery of the disputed mail.

5. Applying the above sections of the DMM, it is determined that AFLP represented by Mr. Hope has the authority to direct the delivery of the disputed mail.

6. The separate dispute between Mr. Hope and AFLP over licensing, patents, trademarks, etc. has no bearing on this mail dispute.

7. This decision determines only the right to direct delivery of the mail in dispute. It does not determine the question of ownership of the mail or entitlement to it. If AFLP receives any mail clearly intended for Mr. Foster individually or as an officer of an entity distinct from AFLP and its Arena Football League, AFLP will be responsible for assuring delivery of such mail to him.

8. The attached proposed mail delivery order should be issued.