P.S. Docket No. FR 98-286
December 09, 2005
In the Matter of the Complaint Against
R. JAMES ELLIS a/k/a
RON ELLIS and
J.R. PUBLISHING, L.L.C.
248A North Higgins
Boxes 521, 522, 523, 524 and 525
Missoula, MT 59802-4459
JAMES ELLIS
Resident Agent
309 7th Avenue SE
Cut Bank, MT 59427-3520
P.S. Docket No. FR 98-286
APPEARANCE FOR COMPLAINANT:
Catherine A. Green, Esq.
Office of the General Counsel
United States Postal Service
475 L’Enfant Plaza, SW
Washington, DC 20260-6100
APPEARANCE FOR RESPONDENT:
Booker T. Evans, Jr., Esq.
Streich Lang
Two North Central Avenue
Phoenix, AZ 85004-2391
POSTAL SERVICE DECISION
Respondents, R. James Ellis a/k/a Ron Ellis, J.R. Publishing, L.L.C. and James Ellis, have filed an appeal from an Initial Decision of an Administrative Law Judge holding that Respondents are engaged in conducting a scheme or device for obtaining money or property through the mail by means of materially false representations in violation of 39 U.S.C. §3005. Complainant, the General Counsel of the United States Postal Service, opposes the appeal.
BACKGROUND
Complainant initiated this proceeding by filing a Complaint, which was subsequently amended, alleging that Respondents were engaged in a lottery enterprise and a scheme or device to obtain remittances through the mail in connection with a puzzle and cash prize promotion in violation of 39 U.S.C. §3005. Specifically, Complainant alleged in Count One, Paragraph 9 of the amended Complaint that Respondents made the following materially false representations in violation of 39 U.S.C. §3005:
a. the addressee named in Respondents’ solicitation has won a large cash prize;
b. the addressee named in Respondents’ solicitation is guaranteed to win a large cash prize;
c. the primary reason Respondents have sent their solicitation to the addressee is that the addressee has been selected to win a cash prize;
d. the addressee needs only to complete the word puzzle and to mail it with a judging fee to the Respondents to win a cash prize;
e. the recipient of Respondents’ solicitation is one of a very limited number of persons who have been approved to be eligible for the cash prize;
f. the likelihood that a recipient of Respondents’ solicitation will win a contest is far greater than is the fact;
g. the likelihood that a recipient of Respondents’ solicitation will win or receive a large amount of cash from Respondents is far greater than is the fact.
In Count Two of the amended Complaint, Complainant alleged that Respondents’ promotion contained the elements of prize, chance and consideration and, therefore, was a lottery in violation of 39 U.S.C. §3005.
Respondents filed a timely Answer, which together with their response to Complainant’s motion to amend the Complaint, denied that they make the representations alleged in the Complaint or that they are engaged in a lottery enterprise in violation of 39 U.S.C. §3005. At a hearing before the Administrative Law Judge, both parties presented witness testimony and documentary evidence. Following the filing of proposed findings of fact and conclusions of law, the Administrative Law Judge issued an Initial Decision in which he concluded that Respondents make the representations alleged in the Complaint and that those representations are materially false. However, the Administrative Law Judge also concluded that Complainant had not established that Respondents were engaged in a lottery within the meaning of 39 U.S.C. §3005.
DISCUSSION
Respondents’ Promotion
Respondents’ promotion consists of several puzzle contests which run simultaneously and use the same basic procedures, but several different names with multiple solicitations for each name.[1] The contests consist of an initial solicitation containing a simple word puzzle requiring the recipient to circle two words in a series of letters. The initial solicitations typically contain a banner headline such as “urgent notice”,[2] “$10,000 Cash Prize Materials”,[3] “Notice of Guaranteed Cash Payout Eligibility”,[4] “Notice of Guaranteed Cash Payout Nomination”,[5] or similar language notifying the recipient of a $10,000 grand prize.[6] The solicitations often contain a unique identification number[7] and either an official gold seal[8] and/or the word “approved” or “verified”[9] in red print as well as repeatedly referring to the recipient by name and emphasizing such words as “guaranteed” and “confirmed”.[10] In addition, Respondents offer a cash “early bird bonus” to encourage a prompt response.[11]
To enter, the recipient is required to return a completed entry form and a “judging fee” of five to twenty dollars, depending on the contest.[12] The entry form contains a questionnaire asking the recipient among other things to advise Respondents how the recipient would like the grand prize delivered (i.e., regular mail, certified mail or overnight delivery) and whether the recipient would agree to have his or her name, city and state released for publicity purposes “upon being declared the Grand Prize Winner”.[13]
Recipients who successfully complete the stage one puzzle and return it along with the required fee are sent a further cash bonus option followed by a stage two puzzle.[14] The stage two puzzles contain another simple word puzzle which requires the recipient to use numerically valued letters to fill in squares for the highest scoring three letter word.[15] The stage two puzzles also contain a bonus option to increase the grand prize for an additional fee. Although the recipient is not required to pay the additional bonus option fee to continue participating, the stage two puzzles emphasize the bonus option in bold type.[16]
Recipients who successfully complete stage two receive a stage three puzzle. Although Respondents’ solicitations suggest that the stage two and three puzzles will be similar,[17] the stage three puzzle is a much larger and more difficult puzzle.[18] The individual who completes the stage three puzzle, or any necessary tie breaker, with the highest score is awarded the grand prize.[19]
Exceptions
Respondents take exception to the Administrative Law Judge’s conclusion that their puzzle and cash prize promotion contains false representations and that the orders authorized by 39 U.S.C. §3005 should be issued. Respondents’ exceptions and Complainant’s reply have been considered and are addressed hereafter.
1. Exception to Finding of Fact No. 5
Respondents contend that the Administrative Law Judge erred in Finding of Fact No. 5 when he stated that the Official Rules do not clearly explain the procedures followed in Respondents’ three stage puzzle promotion and that, in actual practice, Respondents do not follow the contest procedure of sending stage two and three puzzles to persons who complete stages one and two respectively. According to Respondents, the Official Rules clearly explain the contest procedures and in actual practice, they do send stage two and three puzzles to contestants who complete the prior stages.
As pointed out by Respondents, an explanation of the contest procedures is included on the reverse side of the stage one and stage two solicitation letters as part of the “Official Rules”. However, the explanation is buried in two columns consisting of fourteen unnumbered paragraphs that contain no highlighting or bolding.[20] A description of what is being offered - “a point-based contest consist[ing] of 3 puzzle stages, with each stage…requir[ing] more skill” - does not appear until the fourth paragraph. The explanation that recipients will receive additional bonus round solicitations between the mailings containing the stage one to three puzzles does not appear until the eighth paragraph.[21] While every word of the “Official Rules” paragraphs may be true,[22] the explanation of the promotion that appears on the reverse side among the fine print of the two columns of explanation is not sufficient to overcome the overall impression[23] created by the solicitations that the recipient is one of a select few approved to be eligible to win a cash prize; has won or is guaranteed to win a large prize; or needs only to complete the word puzzle and mail it with the judging fee to win a cash prize as alleged in Paragraphs 9(a), (b), (d) and (e) of the Complaint. Under such circumstances, it was not improper for the Administrative Law Judge to find that the contest rules do not clearly explain the true nature of the contest offered by Respondents.
Although as Respondents contend the Administrative Law Judge did find that the orderly procedure described in the contest rules is not always followed, the Complaint did not allege that Respondents failed to follow the established contest procedures. Therefore, whether Respondents followed those procedures in actual practice is irrelevant to a determination of whether Respondents’ solicitations make the representations alleged in the Complaint and whether those representations are materially false.
2. Exceptions to the Alleged Representations
Respondents contend that the Administrative Law Judge misapplied the ordinary reader standard in reaching the conclusion that the language used in their solicitations is likely to mislead a gullible reader into believing that he or she has already won a cash prize. Respondents also argue that the nature of what is being offered by their solicitations is clearly indicated on the front of their solicitations and would be noticed by even “less than careful reader[s]”. Respondents further argue that the information included on the reverse side of their solicitation letters is not inconspicuous and clearly would be noticed by the ordinary reader. Respondents next allege that the Administrative Law Judge erroneously found that a large number of consumers complained about Respondents’ solicitations and that he misquoted Respondent Ellis’ testimony regarding the number of complaints received. Finally, Respondents argue that the Administrative Law Judge’s findings are inconsistent, that he improperly speculated about Respondents’ motive for mailing multiple solicitations,[24] and that he erroneously concluded that the testimony of Complainant’s expert witness was more persuasive than the testimony of Respondents’ experts.
It is well established that the ordinary reader includes the gullible, naïve and less critical reader as well as the sophisticated and wary reader to whom a solicitation is directed.[25] Respondents contend that the Administrative Law Judge misapplied the ordinary reader standard because that standard only applies to “patently absurd representations” whereas this case involves a consumer’s “comprehension of plausible written literature.” The cases on which Respondents rely do not restrict the application of the ordinary reader standard to any particular type of promotional materials or representations, and we perceive no reason to do so in this case. More subtle, ambiguous and confusing solicitations are equally capable of deceiving ordinary readers and are subject to the protections of the postal false representation statute.[26]
The overall impression created by Respondents’ solicitations is that the recipient has already won or is guaranteed to win a cash prize. While Respondents intersperse qualifying words on the front of their solicitations and include an explanation of what is really being offered on the reverse side of the solicitations,[27] the overall impression created by the artful phrasing, positioning, and underlining of such words as “guaranteed”, “confirmed”, “Official Cash Prize Awards Document”,[28] “notice of guaranteed cash payout…locked-in”,[29] “cash access notification… approved”,[30] and similar language would lead the ordinary reader to believe he or she has won or is guaranteed to win a substantial cash prize. At best, Respondents’ promotional materials are confusing to the ordinary reader and subject to different understandings, one or more of which is clearly false, and therefore, in violation of 39 U.S.C. §3005.[31] Thus, we cannot find that the Administrative Law Judge improperly applied the ordinary reader standard or that he incorrectly concluded that Respondents’ solicitations are likely to mislead the ordinary reader into believing he or she had already won, was guaranteed to win, or had been selected to win a cash prize as alleged in Paragraphs 9(a), (b) and (c) of the Complaint.
Contrary to Respondents’ arguments, the nature of the contest is not clear from the front of the stage 1 solicitations. The reference to “three stages” or “three contest stages” and the use of terms such as “eligible” and “nominated”[32] are not sufficient to place the ordinary reader on notice of the true nature of the promotion. While it may be true that many recipients of Respondents’ solicitations would understand that they were competing with others for the cash prizes being offered, it is equally true that many would not. Recipients of Respondent’s solicitations are not required to critically scrutinize every sentence of a solicitation to determine what is being offered, as they would have to do here to fully understand Respondents’ promotional materials.[33]
Respondents also take exception to the Administrative Law Judge’s conclusion that a “large” number of consumers complained about Respondents’ solicitations. According to Respondents, the Administrative Law Judge had no basis for concluding that the number of complaints was large because the record contains no evidence of the total number of solicitations actually mailed. While it may have been inadvisable to describe the number of complaints received as large, some complaints were received as conceded by Respondent Ellis, and it was proper for the Administrative Law Judge to consider those complaints in determining whether Respondents’ solicitations were likely to deceive ordinary readers. Furthermore, under 39 U.S.C. §3005, it is unnecessary to find that anyone actually complained or has been deceived by Respondents’ solicitations in order to conclude that the solicitations make the alleged false representations.[34] The solicitations themselves are the best evidence of their contents and whether the alleged representations are made.[35] Accordingly, the Administrative Law Judge’s description of the number of complaints received as large is not reversible error.
Additionally, Respondents argue that recipients of their solicitations are only protected from failing to recognize “inconspicuous” language and that the combination of the information on the front of their solicitations together with the language included as part of the Official Rules is not inconspicuous. The postal false representation statute is intended to protect against false representations however they may appear in solicitations seeking remittances through the mail. As previously stated, the overall impression created by the language used in Respondents’ solicitations is that recipients have won or are guaranteed to win a cash prize as alleged in Paragraphs 9(a) and (b) of the Complaint. As is clear from the record, neither is true and, therefore, Respondents are in violation of 39 U.S.C. §3005.
Respondents also contend that the Administrative Law Judge improperly determined that the testimony of Complainant’s expert was more persuasive than that of Respondents’ two expert witnesses. Respondents assert that their experts were well-qualified to testify on the issues presented and, presumably, that the Administrative Law Judge should have relied on their testimony to reach the conclusion that Respondents do not make the representations alleged in the Complaint. On the record presented, we are unable to conclude that it was improper for the Administrative Law Judge to give more weight to the testimony of Complainant’s expert witness than to Respondents’ experts. Complainant’s expert was well-qualified to testify on the subject of consumer behavior, and while
Respondents’ experts were well-credentialed in their particular fields, we can find no basis for concluding that they were as qualified or more qualified than Complainant’s witness to render an opinion on the matters in dispute. Moreover, while both lay and expert testimony are admissible and may be relied upon by the trier of fact,[36] neither is necessary to establish whether the solicitations make the representations alleged in the Complaint or the effect of those representations on the ordinary reader.[37] The net impression of a solicitation on the ordinary reader may be determined by the trier of fact solely on the basis of the solicitation itself.[38] Where, as here, the presiding Administrative Law Judge considered and relied on the language of the solicitations themselves as well as the testimony of expert and lay witnesses, we can find no error in his evaluation of the evidence or the conclusions he reached.
Respondents next contend that the Administrative Law Judge’s determination that recipients may overlook, ignore or misunderstand the words “eligible” and “nominee” which appear on the front page of their solicitations is inconsistent with the determination that the same readers would be misled by the words “guarantee” and “confirm” on the same page. The capitalization and underlining of the word “guaranteed” coupled with the frequent reference to a “$10,000 prize” and the additional language included in Respondents’ solicitations previously referred to creates the overall impression that the recipient has been chosen to receive the stated cash prize. The use of such qualifying words as “eligible” and “nominee” would most likely go unnoticed by the ordinary reader, but if noticed would be more likely to confuse the ordinary reader than to clarify what is really being offered. It is well established that solicitations that are confusing or ambiguous and have more than one meaning may be misleading if one of those meanings is false.[39] Moreover, "[i]t is not difficult to choose statements, designs, and devices which will not deceive,"[40] rather than confusing and ambiguous language which is likely to create a false impression as Respondents have chosen to do in this case.
Respondents also contest the Administrative Law Judge’s conclusion that the solicitations represent that the addressee is one of a very limited number of persons eligible to receive the cash prize being offered. Respondents argue that the language of their solicitations would not reasonably cause even an unsophisticated recipient to infer that he or she is one of a very limited group, and that the Administrative Law Judge’s ruling improperly absolves recipients from the responsibility of reading the Official Rules included in the solicitations.
In reaching his conclusion, the Administrative Law Judge cited the overall tone of familiarity in Respondents’ solicitations, including the repeated use of the recipient’s first name; references to the recipient as a “target candidate”; the terms “private” and “confidential” on the envelope; and references to the recipient as the
“sole validated claimant.” From Respondents’ use of these terms, it would not be unreasonable for an ordinary recipient to understand that he or she is one of a very limited number of persons who have been approved to be eligible for a cash prize. While the Official Rules do advise recipients that a large number of contestants is expected, recipients do not have an obligation to critically scrutinize every sentence of a solicitation to determine what is being offered.[41] Moreover, various features of the solicitations, including highlighting and bolding on the front of the solicitations, draw the ordinary reader’s attention away from the statements in the Official Rules. Therefore, it was not improper for the Administrative Law Judge to conclude that some ordinary recipients of Respondents’ solicitations would be likely to believe that they were one of a very limited group of persons eligible to win a cash prize as alleged in Paragraph 9(e) of the Complaint.
Respondents also question the Administrative Law Judge’s conclusion that a consumer would likely believe that he or she has been specially selected to be eligible to win a cash prize while at the same time concluding that a consumer would be likely to believe that he or she has already won a cash prize. Solicitations that are ambiguous and capable of more than one meaning are misleading if one of those meanings is false.[42] Respondents’ solicitations would be likely to lead some ordinary recipients to believe that they are one of a very limited number of persons who have been approved to be eligible for a cash prize while others would be likely to believe that they have won or are guaranteed to win a large cash prize. Therefore, the Administrative Law Judge did not err in concluding that Respondents’ solicitations make the representations alleged in both Paragraphs 9(a) and (e) of the Complaint.
Finally, Respondents contest the Administrative Law Judge’s conclusion that recipients of Respondents’ solicitations would believe that their chances of winning a large amount of cash was greater than was the fact. Respondents argue that the language of their solicitations on which the Administrative Law Judge relied does not support his conclusion and that his calculation of a consumer’s chance of winning a contest is “illogical and inappropriate.” Relying on the words “guaranteed”, “confirmed” and “approved”, the Administrative Law Judge concluded that the ordinary reader would believe that all he or she had to do was fill out the entry form and mail it to Respondents with the required fee. As we have previously stated, upon reading Respondents’ solicitations, ordinary readers would be likely to conclude that he or she had either won a large cash prize or were guaranteed to win a large cash prize. Regardless of how the Administrative Law Judge calculated a recipient’s chances of winning the cash prize, it is quite clear that no recipient was in fact guaranteed to win a cash prize or had already won such a prize. Therefore, their chances of winning the represented prizes were far less than they expected. As a result, we cannot conclude that the Administrative Law Judge improperly concluded that Respondents make the false representations alleged in Paragraphs 9(f) and (g) of the Complaint.
CONCLUSION
The Administrative Law Judge correctly determined that Respondents’ solicitations make the representations alleged in the Complaint and that those representations are materially false. [43] Accordingly, the appeal is denied, the Initial Decision is affirmed[44] and the orders recommended by the Administrative Law Judge and sought by Complainant are issued herewith.
James A. Cohen
Judicial Officer
[1] Transcript (Tr.) 151-52, 158-59; see Complainant’s Exhibits (Ex.) 49-51, 53 and 60.
[6] See Complainant’s Ex. 49 (“$10,000.00 Cash Prize Materials”), Ex. 53 (“$10,000.00 Prize Notification”), and Ex. 60 (“Document of $10,000.00 Cash Availability”).
[7] See Complainant’s Ex. 49-51, 53 and 60.
[8] See Complainant’s Ex. 49 and 51.
[9] See Complainant’s Ex. 49, 51 and 60.
[10] See Complainant’s Ex. 49-51, 53 and 60.
[11] See Complainant’s Ex. 49-51, 53 and 60.
[13] See, e.g., Complainant’s Ex. 49.
[15] See Complainant’s Ex. 52 and 61-63.
[17] See Complainant’s Ex. 49-51 and 60, stating that each subsequent part after stage one “has squares that you simply fill in using certain valued letters to initiate the pre-eminent sum on the combined parts.”
[19] See Respondents’ Ex. 1; Tr. 153.
[20] See, e.g., Complainant’s Ex. 49-53 and 60-63.
[22] See Donaldson v. Read Magazine, Inc., 333 U.S. 178, 188 (1948) (“[a]dvertisements as a whole may be completely misleading although every sentence separately considered is literally true”); Allen Glazer d/b/a Poster Distribution Center, P.S. Docket No. 40/49 (P.S.D. Jan. 27, 1994) (the overall impression conveyed by a solicitation to the ordinary reader may make the alleged misrepresentations even if every statement in the solicitation is literally true); Com-Tel Directories, Inc., et al., P.S. Docket No. FR 95-276 (P.S.D. July 27, 2001) (overall context of a solicitation may be misleading to ordinary consumers).
[23] See Rhodes Pharmacal Co., Inc. v. FTC, 208 F.2d 382, 387 (7th Cir. 1953) (“[t]he important question to be resolved is the impression given by an advertisement as a whole”); Scott P. Cullinane, et al., P.S. Docket No. 39/32 (P.S.D. Nov. 7, 1994) (“[s]olicitations which are ambiguous or capable of more than one meaning are misleading if one of those meanings is false”); Charles Smith, et al., P.S. Docket No. 37/180 (P.S.D. Jan. 31, 1994).
[24] Respondents’ argument, even if correct, would not alter the conclusions reached in this decision as motive is not an issue in proceedings under 39 U.S.C. §3005. See Unique Ideas, Inc. v. United States Postal Service, 416 F. Supp. 1142, 1146 (S.D.N.Y. 1976) (“intent to deceive is not an element of 39 U.S.C. §3005”); Lynch v. Blount, 330 F. Supp. 689, 692 (S.D.N.Y. 1971), aff'd, 404 U.S. 1007 (1972) (no requirement of a finding of scienter needed under statute); Sammy Y. Ip, P.S. Docket No. 20/65 (P.S.D. on Motion for Recon. Sept. 30, 1987) (intent to deceive is not required in order to show a violation of 39 U.S.C. §3005). Therefore, this argument will not be addressed further.
[25] See Fields v. Hannegan, 162 F.2d 17, 18 (D.C. Cir. 1947), cert. denied, 332 U.S. 773 (1947); M.K.S. Enterprises, Inc. v. United States Postal Service, 459 F. Supp. 1180, 1184 (E.D.N.Y. 1978); Scott P. Cullinane, et al., P.S. Docket No. 39/32 (P.S.D. Nov. 7, 1994) (ordinary readers include not only highly educated and sophisticated readers, but also gullible, naïve, and less critical readers).
[26] G.J. Howard Co. v. Cassidy, 162 F. Supp. 568, 572 (E.D.N.Y. 1958) (“if [a solicitation] is artfully designed to mislead those responding to it the mail fraud statutes are applicable”); Directory Publishing Services, et al., P.S. Docket No. 38/122 (P.S.D. July 24, 1992); Sammy Y. Ip, et al., P.S. Docket No. 20/65 (P.S.D. Sept. 26, 1986).
[27] See Complainant’s Ex. 49-53 and 60-63.
[31] See Rhodes Pharmacal Co., Inc. v. FTC, 208 F.2d 382, 387 (7th Cir. 1953) (“[a]dvertisements which are capable of two meanings, one of which is false, are misleading”); Scott P. Cullinane, et al., P.S. Docket No. 39/32 (P.S.D. Nov. 7, 1994) (“[s]olicitations which are ambiguous or capable of more than one meaning are misleading if one of those meanings is false”); Charles Smith, et al., P.S. Docket No. 37/180 (P.S.D. Jan. 31, 1994).
[32] See, e.g., Complainant’s Ex. 49, 51 and 53.
[33] Scott P. Cullinane, et al., P.S. Docket No. 39/32 (P.S.D. Nov. 7, 1994) (39 U.S.C §3005 does not impose a duty on any consumer to critically scrutinize the fine print on a solicitation); Directory Publishing Services, et al., P.S. Docket No. 38/122 (P.S.D. Feb. 28, 1994) (“[r]ecipients of solicitations, whether careful or careless, have no obligation to critically scrutinize every sentence to determine the nature and source of [what is] being offered”); Charles Smith, et al., P.S. Docket No. 37/180 (P.S.D. Jan. 31, 1994) (“[c]onsumers, whether careful or careless, have no obligation to critically scrutinize the fine print contained on a solicitation”).
[34] Dynaquest Corp. v. United States Postal Service, 12 F.3d 1144, 1147 (D.C. Cir. 1994) (“The decisive factor…is not whether any one complains of fraud, or was in fact defrauded, but whether the mails are being used to project a [fraudulent] scheme”, quoting, Farley v. Heininger, 105 F.2d 79, 84 (D.C. Cir. 1939)); The Stars and Stripes, et al., P.S. Docket No. 37/128 (P.S.D. Oct. 21, 1993) (“whether anyone complains or has been deceived by [a] solicitation need not be proved in order to establish the existence of a false representation scheme”).
[35] Ruby Juergens d/b/a The Worldlife Company, P.S. Docket No. 40/132 P.S.D. Sept. 20, 1996) (“the…solicitations themselves are the best evidence of their contents”); Delta Enterprises, et al., P.S. Docket Nos. 14/72-75 (P.S.D. July 3, 1984) (even though supportive evidence was presented, the solicitation itself is sufficient evidence); Fort Morgan Vapor Jet, P.S. Docket No. 12/64 (P.S.D. Sept. 29, 1982) (whether a solicitation makes an alleged representation may be determined on the basis of the solicitation alone).
[36] Erica Lynn Kortje d/b/a Employment Classifieds, P.S. Docket No. 40/176 (P.S.D. Sept. 27, 1995) (although additional evidence other than the solicitations is not needed to establish the existence or meaning of the alleged representations, such evidence may be accepted and considered); Directory Publishing Services, et al., P.S. Docket No. 38/122 (P.S.D. Feb. 28, 1994) (neither lay nor expert testimony is required, but may be considered by the Administrative Law Judge if presented); W.G. Charles Co., et al., P.S. Docket Nos. 19/104 & 19/162 (P.S.D. Sept. 10, 1985) (while expert testimony is not required, it is within the discretion of the presiding officer to permit such testimony).
[37] Ruby Juergens d/b/a The Worldlife Company, P.S. Docket No. 40/132 P.S.D. Sept. 20, 1996) (“the…solicitations themselves are the best evidence of their contents and neither lay nor expert testimony is necessary to establish whether the solicitations make the representations alleged in the Petition or the effect of those representations on the ordinary reader”); Allan Glazer d/b/a Poster Distribution Center, P.S. Docket No. 40/59 (P.S.D. Jan. 27, 1994) (the Administrative Law Judge, as the initial finder of fact in a proceeding under 39 U.S.C. §3005, is entitled to rely on the solicitations, which are the best evidence of their contents, without the aid of lay or expert testimony); Scott David Wilcox d/b/a Telco Directories, Inc., P.S. Docket No. 18/147 (P.S.D. April 20, 1988) (“[n]either lay nor expert testimony is necessary to establish whether the solicitations make the representations alleged…or the effect of those representations on the ordinary reader”).
[39] See cases cited supra note 31.
[40] United States v. 95 Barrels of Vinegar, 265 U.S. 438, 443 (1924). See also Scott P. Cullinane, et al., P.S. Docket No. 39/32 (P.S.D. Nov. 7, 1994); Directory Publishing Services, et al., P.S. Docket No. 38/122 (P.S.D. Feb. 28, 1994); Charles Smith, P.S. Docket No. 36/129 (P.S.D. Dec. 9, 1993), and cases cited therein.
[41] See cases cited supra note 33.
[42] See cases cited supra note 31.
[43] Respondents have not taken issue with the Administrative Law Judge’s conclusion that the representations, if made, are materially false, and the falsity is established by the solicitations themselves. See, e.g., Complainant’s Ex. 49-53 and 60-63.
[44] Complainant has not appealed the Administrative Law Judge’s ruling on the lottery issue and, therefore, that issue has not be considered on appeal.