In the Matter of the Complaint Against RESEARCH ASSISTANCE, INC., 11941 Wilshire Boulevard, Suite No. 2 at Los Angeles, California 90025 P.S. Docket No. 2/180 September 17, 1974 Rudolf Sobernheim Administrative Law Judge APPEARANCES: Thomas A. Ziebarth, Esq. Consumer Protection Office Law Department U. S. Postal Service Washington, D.C. 20260 for Complainant Howard King, Esq. Gang, Tyre & Brown 6400 Sunset Building Hollywood, California 90028 for Respondent
This is a proceeding by Complainant against Respondent under 39 U.S.C. 3005 which authorizes action against Respondent on evidence satisfactory to the Postal Service that Respondent "is engaged in conducting a scheme or device for obtaining money or property through the mails by means of false representations."
Complainant alleges that Respondent is engaged in such a scheme in the sale of term papers, reports, and other materials to students at colleges and universities whose custom is solicited by advertisements in various publications (Compl. Ex. 1, 5).
Specifically, Complainant alleges that:
"(3) By and through the use of such promotional activities and materials, Respondent offers to sell and, in fact, does sell term papers, reports, and other materials -both prewritten and original - to students at colleges and universities who remit money through the mail;
"(4) By means of the scheme described herein, Respondent knowingly cooperates with its student customers by furnishing instrumentalities which enable and encourage such students to submit the papers they have purchased for academic credit, thereby falsely representing them to be the product of their own original research and writing."
Respondent in its answer denied the allegations of the complaint and pleaded as affirmative defenses that the facts alleged in the complaint did not constitute a violation of 39 U.S.C. 3005 by Respondent and that the proceeding instituted by Complainant deprived it of its constitutional rights under the First, Fourth and Fifth Amendments to the Constitution of the United States. At the hearing Respondent conceded, however, as a matter of fact that by means of the advertisements heretofore mentioned it solicited customers' orders for its research papers through the mails but it continued to deny that its business activities in any way violated 39 U.S.C. 3005. At the hearing both parties presented testimonial and documentary evidence and both parties filed post-hearing briefs.
1. Respondent was incorporated in the State of California in February 1972 under the name of "Termpaper Arsenal, Inc." In July
1973 it changed its name to Research Assistance, Inc. (Compl. Ex. 10). Both before and after the change of name the place of business of Respondent was at 519 Glenrock Avenue, Los Angeles, California 90024 ( ibid .). It is currently located at 11941 Wilshire Boulevard, Los Angeles, California 90025 (Resp. Answer, par. 2).
2. Both before and after the change of name it was Respondent's "primary and specific" corporate purpose "to gather, compile and organize data found in various books, periodicals and other printed matter so as to facilitate public consumption thereof" (Compl. Ex. 10, ARt. of Incorp., Art. IIA) and its general purpose and powers to engage in all lawful activities connected with maintenance and perpetuation of a "research reference service" ( id ., Art. IIB).
3. During all relevant times Respondent maintained a voluminous catalogue, describing an alleged 4,500 "research papers" (Compl. Ex. 7). The catalogue comprised 143 tightly printed pages listing for each research paper the number, the title, a summary one-or two-line description of content and references to footnoting, bibliography and length. An index of some 100 headings precedes the catalogue. The catalogue also offers original research papers to be readied on 16-day notice.
4. The research papers offered to purchasers by Respondent (Compl. Ex. 9, 11; Resp. Ex. 2, 3 and 4) are in narrative form and may contain bibliographies and footnotes of varying length and depth. Some of the research papers not only summarize information gleaned from other sources but give some sort of conclusion by the author of the paper who speaks at times of him-or herself in the first person (Compl. Ex. 9 [Free Will; Phase III Stabilization Plan]; Resp. Ex. 2 [Marx and Weber]; Resp. Ex. 4 [Proposition 20]. Other research papers offer only summaries of data and refrain from personal references to the author and his or her conclusions ( id . [Newspaper Shield Laws]; Compl. Ex. 11 [Treatment of Indians]; Resp. Ex. 3 [Actinomyces israelii]).
5. Some, at least, of Respondent's research paper appear to lend themselves readily to direct quotation in student term papers (Compare Resp. Ex. 1 [student's term paper] with Resp. Ex. 2 [Respondent's research paper purchased by student], indicating that the student transposed many sentences of the purchased research paper into her own term paper with no significant change in phrasing (see Compl. Br., pp. 11-13)).
6. Respondent advertised its product in the fall of 1973 and early in 1974 in numerous college of university newspapers (Compl. Ex. 1, 5; for a list see T 16-17). Advertising appears to be nationwide ( ibid .). The advertisements are labelled "RESEARCH" in large letters and offer "Thousands of Topics" at $2.75 per page as well as Respondent's catalogue for $1.00. The advertisement gives Respondent's name, address and telephone number and closes with the following statement in the smallest lettering in the advertisement:
"Our research material is sold for
research assistance only."
7. The order forms used by Respondent (Compl. Ex. 7 (last page), 8) contain a declaration of the purchaser that he or she will use the material for research purposes only. The catalogue order form also requests the purchaser to state school and department attended for "market analysis purposes" (Compl. Ex. 8).
8. Both parties introduced evidence as to the conduct or scope of Respondent's business.
a. Complainant established through the testimony of a postal inspector that Respondent uses the mails in dealing with customers who make inquiries through the mails and accepts payment for research papers through the mails (Compl. Ex. 6, 8, 9).
b. Respondent called an UCLA student (T 68) who testified that she resorted the purchase of Respondent's research paper (Resp. Ex. 2) because she was unable within the time at hand to find the books which the library staff directed her (T 77). This purchase did not, however, involve any use of the mails (T 70 et seq .). See also Finding No. 5.
c. Respondent also called as a witness an independent researcher of substantial academic qualifications and working experience (T 80-83) who had written numerous research papers for Respondent. She had bought as well a number of Respondent's research papers at their regular price to obtain background material and basic information on topics on which she was writing for magazines (T 84) or other customers (T 85). She testified that, when asked by Respondent to prepare papers for it, she did not know the identity of the customers or the purposes for which the papers were prepared (T 94 et seq .). Nor did she consider the papers written by her as a finished product (T 100). As term papers, for instance, they lacked a personal conclusion or a statement of her views (T 102).
9. Complainant called a reference librarian from UCLA (T 35 as an expert witness on the basis of the three research papers purchased by the postal inspector from Respondent (Compl. Ex. 9) that they were not useful as research material in that they gave scant lead to leading works or to periodical articles on the topic covered and lacked professional quality (T 49, 60-1). She criticized them as improperly injecting the personal views of the author without disclosing his or her identity or qualifications (T 47-8, 50, 59). She saw their main usefulness in their use as student term papers (see T 48, 64-5) but conceded that they could be useful to anyone seeking quick information on an unfamiliar topic (T 65).
10. Based on the foregoing detailed findings of fact and the record as a whole, I find:
a. Respondent offers and sells its product to the general public, including students. That students were expected to be a substantial segment of Respondent's market is shown by its advertising in student newspapers and its request for information on the purchaser's school and department (Compl. Ex. 8). The record establishes, however, that Respondent's product has a market among the non-student population. Complainant has adduced no data from which the composition of Respondent's market or sales can be determined.
b. Some at least of Respondent's research papers are nothing more than narrative summaries of published material (see Compl. Ex. 9 (in part), 11; Resp. Ex. 3; Finding No. 4) which cannot be used as finished term papers. Others lend themselves to the fraudulent misuse against which the complaint is directed.
c. The record supports the conclusion that Respondent's student purchasers may have a legitimate use of its product, as when needed books are in use and cannot be obtained in the school and time presses.
d. No effect can be given to Respondent's warning that its materials are not sole "as a finished product for academic credit" (Compl. Ex. 1, 5) or to the purchaser's declaration on the order blank that Respondent's research papers "will be used for research purposes only" (Compl. Ex. 8). Such declarations and undertakings are incapable of being policed or enforced and are seen by the ordinary member of the public reading Respondent's advertising solely as "cosmetic" language without inhibitory meaning.
3. No importance attaches to the name change of Respondent which is not shown to have affected the conduct of its business.
f. Although some of the facts found tend to lend support to the charges made in the complaint herein the weight of the evidence does not support an ultimate finding that Respondent is engaged in the business of furnishing term papers to students who, as Respondent knows or must be deemed to know, submit them in their courses in order to obtain academic credit therefore under the false representation that such term papers, actually purchased complete from Respondent, are their own work.
1. Respondent here is charged with enabling its student customers to represent falsely to the institutions of higher learning which they attend that their term papers are their own work when in fact they are Respondent's product without significant student contribution in research, thought or writing. Respondent is charged with selling its product through the mails with full knowledge of the false representations made by its student customers to third parties and with willingly helping its student customers to attain their ends.
2. False representations to third parties are within the scope of 39 U.S.C. 3005 which is not limited by its express terms to schemes or devices in which the false representations are made by the seller to the purchase of a product or service. While the latter is the situation commonly encountered, this fact does not preclude the application of the statute to other and perhaps novel situations which fall within its stated scope.
3. The foregoing view of the broad scope of 39 U.S.C. 3005 was articulated in United States v. International Term Papers, Inc. , 477 F.2d 1277 (1st Cir., 1973). While the administrative law judges of the U.S. Postal Service are not bound by this decision, it is persuasive in the highest degree and is followed here. See also the Initial Decision in Termpapers , P.S. Docket No. 2/188(1974).
4. But, as the Court of Appeals stated ( loc . cit ., supra , at p. 1280), for the statute to apply to a sender, where a third party is deceived by the recipient, "the sender must contemplate a 'scheme' which involves a misrepresentation based on the materials which he sends. In such a case, therefore, the intent of the seller, in the sense of his knowing cooperation in the scheme, is, by the words of the statute, a necessary prerequisite" for application of the postal statute.
5. While the International Term Papers case, supra , involved the right of the Postal Service to a court order under 39 U.S.C. 3007, there exists no perceived distinction between the transactions covered by that section and those subject to an order under 39 U.S.C. 3005 invoked by Complainant here.
6. Accordingly, 39 U.S.C. 3005 is applicable in the premises and Respondent's first affirmative defense fails.
7. The evidence adduced by Complainant in this proceeding is insufficient, in the light of the entire record, to support the issuance of an order against Respondent under 39 U.S.C. 3005. Any other conclusion would have to rest on inferences too tenuous to support the statutory action proposed by Complainant.
8. In the light of the result reached it is unnecessary to consider the affirmative constitutional defenses pleaded by Respondent as well as other points raised on its behalf.
9. Contrary to Respondent's contention, the nature of academic research at the undergraduate college or university level is directly part of the subject matter in this proceeding. Hence, "research" becomes a field of special competence where the trier of facts need not solely rely on non-specialized observation and as to which testimony of persons with special experience in research work is properly received as expert testimony. WIGMORE ON EVIDENCE (3d ed. (1940), Supp. (1972)), sec. 556, 559; cf . Snyder v. New York Central Transport Company, Inc. , 4 Mich. App. 38, 143 NW 2d 38 (1966). Complainant's expert witness as well as the independent researcher, called by Respondent, were qualified to testify on the subject of research and their testimony has been given appropriate weight in reaching the findings of fact made herein.
10. Accordingly, an order under 39 U.S.C. 3005 should not be issued against Respondent.