In the Matter of the Complaint Against JAY NORRIS CORPORATION 25 West Merrick Road at Freeport, New York 11520 P.S. Docket No. 2/120; APPEARANCES: Thomas A. Ziebarth, Esq. Law Department United States Postal Service Washington, D.C. 20260 for Complainant Jerold W. Dorfman, Esq. Friend and Dorfman 747 Third Avenue New York, New York 10017 for Respondent
This proceeding under 39 U.S.C. 3005 involves the sale of "Lincoln-Kennedy" pennies. These are Lincoln pennies on which when they were in uncirculated condition 1/ Respondent or someone on his behalf stamped a profile of President Kennedy facing that of President Lincoln. Complainant does not contend that such treatment of a minor coin violates any law, but does charge that in marketing the coins Respondent makes the following false representations:
"(a) That the United States Treasury Department has minted a Commemorative Lincoln Head penny with a Kennedy profile;
"(2) That the Lincoln-Kennedy penny, though legal tender, is uncirculated and never released for ordinary use;
"(3) That the issuance of the Lincoln-Kennedy penny is sanctioned by section 332, Title 18 U.S. Code; and
"(4) That because said coin is of historical and numismatic significance, it is certain to become a collector's item that will grow and grow in value."
Respondent denies that its advertisement makes representation (a) and denies that (2)-(4) are false.
The Chief Administrative Law Judge found that all of the representations were made and that (a), (3) and (4) are materially false and that (2) is false, but not materially so.
The representation described in (a) above is
"That the United States Treasury Department has minted a Commemorative Lincoln Head penny with a Kennedy profile".
Respondent argues that, because it does not expressly refer to the U. S. Mint, its reference to "minted" could refer to a private mint as well as to a Government-owned mint. It is accepted that a mint need not be operated by or on behalf of the Government. Nevertheless, it is well known by the general public that only the Government through the Treasury Department is authorized to mint official coinage. The allegation that representation (a) is made, however, is plainly supported by the advertisement's prominent headline "The Only LINCOLN-KENNEDY PENNY EVER MINTED", as well as the statement contained in the advertisement that it is "legal tender". That language conveys the message to the ordinary reader that what is offered for sale is a product of an official U. S. Mint. While other language in the advertisement lends support to this conclusion, the language cited supports the conclusion by itself. A "penny" that is "legal tender" must preforce be minted by the Government and the ordinary reader of general publications would understand Respondent to be representing that which was minted by the United States Government.
Accordingly, the Chief Administrative Law Judge's finding in this regard is sustained and Respondent's exception thereto is denied.
Respondent also excepts to the findings that representations (3) and (4) 2/ are materially false.
The message conveyed by representation (3) is obscure. To the extent that it may suggest that the product has an official character it is covered by representation (a). In view of the determination with respect to representation (a), it is unnecessary to consider whether representation (3) is materially false because the law 3/ does not expressly authorize, or expressly exempt from the legal proscription against mutilation, coins altered, as here.
The Chief Administrative Law Judge found that representation (4) was false since there is no certainty as represented that the Lincoln-Kennedy pennies will grow and grow in value.
Complainant's numismatic expert testified that the value of the Lincoln penny would not be enhanced by the addition of the
Kennedy profile and that far from there being any certainty that these items would "grow and grow in value", it is unlikely that their value would appreciate.
Respondent would treat representation (4) as puffery or a mere statement of opinion. However, the representation was made with such force as to take it beyond the bounds of puffery and opinion. It is rather a representation on which readers might be expected to rely. Respondent also objects on the ground that the expert witness may be wrong in forecasting no growth in value. That, of course, may be true, but Respondent represented that it is certain that the pennies will grow and grow in value. The testimony must be accepted as establishing firmly that there is no such certainty.
The Chief Administrative Law Judge, therefore, was right in finding representation (4) is false.
Upon review of the Initial Decision in the light of the exceptions of the parties, I find as did the Chief Administrative Law Judge in the Initial Decision that Respondent is engaged in a scheme or device for obtaining money or property through the mail by means of materially false representations and that a remedial order should be issued against this Respondent pursuant to 39 U.S.C. 3005. Such an order is being issued contemporaneously with this decision.
02/27/74
Wenchel, Adam G.
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1/ We need not concern ourselves with the exact meaning ascribed to "uncirculated" or whether "uncirculated condition" has the same meaning as "uncirculated".