In the Matter of the Complaint Against: ALPHA DELTA TAU, Suite 224, 102 Charles Street at Boston, Massachusetts 02114 P.S. Docket No. 4/65 02/06/76 Sobernheim, Rudolf, Administrative Law Judge APPEARANCES: Daniel S. Greenberg, Esq. Consumer Protection Office, U.S. Postal Service Washington, D.C. 20260, for Complainant Milton H. Raphaelson, Esq. 14 Harvard Street, Worcester, Massachusetts 01608, for Respondent
This is a proceeding by complainant against respondent under 39 USC 3005 which authorizes action against respondent upon 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 memberships in ALPHA DELTA TAU. Specifically, complainant in paragraph (2) of the complaint alleges that by the use of an advertisement, a copy of which is attached to the complaint, respondent falsely represents, directly or indirectly, by means of affirmative statement, implication or omission, in substance and effect:
"(a) That Respondent society, Alpha Delta Tau, is recognized by the academic community as a bona fide academic society;
(b) That potential members of the society are nominated upon the basis of the following criteria:
(i) outstanding scholastic achievement in all academic disciplines;
(ii) high standards of personal integrity;
(iii) leadership ability;
(c) That, in employing the criteria enumerated in subparagraph (b), supra, the prospective member's activities both inside and outside the classroom are stressed;
(d) That membership in Respondent society is recognized by the academic community as proof of achievement of the goals enumerated in subparagraph (b), supra;
(e) That the potential member is assured that his fellow members meet the criteria enumerated in subparagraph (b), supra;
(f) That the remitter may accurately hold out to the academic community and to the world that he has been selected for membership in the society on the basis of the criteria enumerated in subparagraph (b), supra;
(g) That Respondent has on a regular basis published in the past, and continues to regularly publish, a newsletter containing articles on various topics of interest to the academic community;"
Respondent's answer, signed by Robert Coven, admitted that Alpha Delta Tau was sending out the letter and card copies of which were attached as Exhibits A and B to the complaint and was soliciting money through the mail. In response to paragraph 2 of the complaint respondent in substance denied any representation, other than appears in the cited exhibits, that "the academic community recognizes it as a bona fide academic society". In addition respondent denied allegations of the complaint, alleged that it employs bona fide procedures, and denied understanding of the terms "academic community" and "bona fide academic society." Respondent also admitted that Alpha Delta Tau's newsletter "The Laureate" had not been published in the past but alleged that respondent fully intended and still intends to publish the same. Finally, respondent denied that the representations charged in paragraph (2) of the complaint were false.
At the hearing held thereafter herein the parties entered into various stipulations as to factual matters, including a definition of the term "academic community" used in the complaint (T 7 et seq.). They also stipulated that a third student witness from the University of Massachusetts at Amherst, Massachusetts, would testify to the same effect as two other student witnesses whose testimony was received (T 63). Finally, they stipulated the testimony of the Registrar and the Dean of Students at the University of Massachusetts at Amherst, Massachusetts, and the Dean of Undergraduate Admissions at Harvard University, Cambridge, Massachusetts (T 64-69). These witnesses would have been called on behalf of complainant. Respondent conceded that cross-examination of these witnesses would not have altered their testimony on direct examination (T 69). At the end of the hearing counsel for both parties presented oral argument based on the record thus made. Decision was reserved and is hereby rendered.
1. In August 1975 (T 13) respondent sent a letter to all students entering their junior or senior years at the Amherst campus of the University of Massachusetts (T 13-14) whose grade average exceeded 3.0 (T 7), the equivalent of a B average under other grading systems (T 64), and informed them that they had been selected for membership in Alpha Delta Tau and should return an enclosed card as a sign of their acceptance accompanied by a $20.00 check or money order to Alpha Delta Tau.
2. The list of students with 3.0 or better grade averages was obtained for respondent by Zamir Nestlebaum who was working at the University during the summer of 1975. The stipulated testimony of the University's Registrar discloses that the list was given to Mr. Nestlebaum because he stated that he was doing research on honors programs. The University also ran off for Mr. Nestlebaum a set of student home address labels for mailing (T 65).
3. Based on this list respondent sent 5,000 letters (T 12-13) to the student target group who constituted 30 to 40% of the total of the two classes (T 65).
4. The letters were sent to the students' home addresses.
5. The letter, on Alpha Delta Tau letterhead with a Greek letter logo and Boston address, read as follows (Compl. Ex. 1, A to Compl.):
"It is our pleasure to inform you that you have been selected for membership in Alpha Delta Tau, the honor society recognizing outstanding scholastic achievement in all academic disciplines.
Membership is restricted to the highest ranking collegiate juniors and seniors.
Alpha Delta Tau is founded on the principle that scholarship, although an end unto itself, should be combined with personal integrity and leadership ability in order to engender true wholesomeness of character. Excellence both inside and outside the classroom is stressed; members are nominated according to these criteria.
As a member of Alpha Delta Tau, you are eligible for publication in the official Alpha Delta Tau newsletter, The Laureate. We invite you to submit an original article on any topic of interest to the university community. Manuscripts must be typewritten, double-spaced, on 8 1/2 x 11 sheets; preferred length is 1000 to 5000 words. Be sure to enclose a self-addressed envelope with sufficient return postage. Publication in The Laureate is not mandatory for membership; however, all members are exclusively entitled to submit manuscripts at any time.
Your acceptance into membership is contingent upon completing and returning the enclosed reply card immediately, clearly typing or printing all information. Please spell your name as you want it to appear on your scroll.
An invitation fee of $20 must accompany the card, payable by check or money order to Alpha Delta Tau. We are also requesting that you provide us with additional biographical data -- to be incorporated in press releases to your hometown or regional newspaper -- on the back of the card.
Again, we congratulate you on your superior performance, and offer you our sincerest wish for continued success."
6. The enclosed card reads as follows (Compl. Ex. 2, B to Compl.):
ALPHA DELTA TAU
SUITE 224
102 CHARLES STREET
BOSTON, MASSACHUSETTS 02114
NAME
ADDRESS
SCHOOL
MAJOR
CLASS
AGE
PARENT
Please print or type pertinent biographical data on back. Include other honors which you have received and campus organizations to which you belong. Thank you.
7. At the time when the letter was mailed respondent had not made any concrete preparations for publishing the newsletter "The Laureate" and no issue thereof had been published prior to the mailing of the letter (Compl. Ex. 1) or, as far as appears, since. Nor did Alpha Delta Tau have any members at the time when the letter (Compl. Ex. 1) was mailed.
8. Shortly after the letter was mailed it came to the attention of the University and the State of Massachusetts who appear to have considered Alpha Delta Tau not to be a genuine academic undertaking. When the students returned to the Amherst campus in September 1975 they quickly learned of these charges (T 56) and the enterprise appears to have collapsed, at least as far as the addressees of respondent's letter were concerned, and no further mailings have been made (T 15).
9. Two students who had received respondent's letter and accepted membership in Alpha Delta Tau by returning the card and paying the $20.00 initiation fee testified that they had accepted the membership in order to have an additional extra-curricular honor or membership to list on their resumes when seeking employment or, in particular, admission to graduate school (T 23, 29, 53 et seq.).
10. One of the students testified that she was impressed by the reference to the newsletter (T 40) and considered from the letter (Compl. Ex. 1) that the newsletter was a going concern in which she could have an article published right away (T 44, 46, 49-50).
11. This witness also testified that she had accepted membership on the assumption that the University had checked out and was recognizing Alpha Delta Tau (T 39-40). The other witness stated that through the letter Alpha Delta Tau had presented itself as a bona fide honor society, accepted as such in the "academic community" (T 23, 26).
12. Both students testified that they considered Alpha Delta Tau membership an honor because personal qualities of integrity and leadership ability were part of the basis of selection, not grades alone (T 18-19, 23, 42).
13. when it became known that all students with a 3.0 average had been offered membership and that Alpha Delta Tau had not checked the personal background of the individual students offered membership, Alpha Delta Tau no longer could be considered a bona fide honor or legitimate honor society and had no value for students (T 53-54, 58, 31; see also the stipulated testimony of the University of Massachusetts and Harvard University deans, T 66-68).
14. Based on the foregoing detailed findings of fact and the record as a whole I find in respect of the representations, charged in paragraph (2) of the complaint to have been made and falsely made by respondent:
a. Respondent does not represent that it is recognized by "the academic community" within the broad definition of this nebulous term, stipulated to by the parties (T 8, 12). The record does show, however, that recipients of respondent's letter understood it as representing that Alpha Delta Tau was recognized as a honor society by their university and by graduate schools to which they might apply for admission. Such intendment is supported by the testimony of witnesses, stands uncontradicted and is within the verbiage, used by complainant in paragraph (2) of the complaint and, hence, within the broad charge made. By calling itself "the honor society recognizing outstanding scholastic achievement in all academic disciplines" and adopting a Greek letter name respondent represented itself as being "recognized by the academic community" in the limited sense defined hereinabove and charged in paragraph (2)(a) of the complaint. Respondent did so falsely since it was a new organization without any standing whatever.
b. Respondent in the third paragraph of its letter (Compl. Ex. 1) makes the representation charged to it in paragraph (2)(b) of the complaint and does so falsely since the record shows that membership in Alpha Delta Tau was offered by respondent to all 3.0 average students, entering the junior or senior class at the University of Massachusetts Amherst campus in September 1975, without regard to any other qualification or lack thereof.
c. The third paragraph of respondent's letter (Compl. Ex. 1) makes the representation charged in paragraph (2)(c) of the complaint and does so falsely since activities, i.e. a showing of excellence, outside the classroom, played no role in selection for Alpha Delta Tau membership.
d. Respondent does not make the representation charged to it in paragraph (2)(d) of the complaint nor does the testimony show that recipients of the letter (Compl. Ex. 1) so believed or understood.
e. Respondent, by making the representations charged in paragraph (2)(e) of the complaint, represents that all members of Alpha Delta Tau are selected on the basis of the stated criteria and, hence, an ordinary reader would as a matter of fact understand - and, hence, respondent represents by implication - that he or she finds him- or herself in an organization all members of which have been selected for the same qualities of excellence as the recipient of the letter him- or herself. Such representation is false since a grade 3.0 average was the only criterion of selection.
f. Respondent in the first and second paragraphs of its letter (Compl. Ex. 1) represents that membership in Alpha Delta Tau, the honor society, is restricted to the highest ranking collegiate juniors and seniors and hence represents by reasonable implication that the member may assert such status toward the outside world, as charged in paragraph (2)(f) of the complaint. Such representation is false because membership in Alpha Delta Tau was by said letter extended to all students with a 3.0 or B average who constitute 30% to 40% of the class to the members of which respondent's letter (Compl. Ex. 1) was addressed. Such a large mass of eligibles does not constitute a membership "restricted to the highest ranking".
g. Respondent does not make the representations charged in paragraph (2)(g) of the complaint that it "has on a regular basis published in the past, and continues to regularly publish" a newsletter. At most respondent represents that members are eligible to have articles published in the newsletter and by implication that such a newsletter will appear at reasonable intervals. Whether such representation would have been false can in the circumstances and on the record not be determined.
1. Respondent is engaged in conducting a scheme or device for obtaining money or property by means of false representations within the meaning of 39 USC 3005.
2. Respondent's letter (Compl. Ex. 1) expressly seeks to create the false impressions charged in paragraph (2)(a), (b), (c), (e) and (f) of the complaint of the U.S. Postal Service and will be so understood by the ordinary reader. See Donaldson v. Read Magazine, 333 U.S. 178, 189 (1948).
3. Accordingly, an order pursuant to 39 USC 3005 in the form attached should be issued against Respondent.