In the Matter of the Complaint Against: SOPHISTICATION PLUS, 1 Wolfs Lane at Pelham, New York 10803 P.S. Docket No. 5/46 10/21/76 Duvall, William A.; Chief Administrative Law Judge Daniel S. Greenberg, Esq. Law Department United States Postal Service Washington, D.C., for Complainant John B. Amrod, Esq. 1055 Franklin Avenue, Garden City, New York, for Respondent Before: William A. Duvall, Chief Administrative Law Judge
This proceeding was initiated by the filing of complaint on July 27, 1976 by the Consumer Protection Office, Law Department, United States Postal Service. In this complaint it is alleged that Sophistication Plus, Respondent, located at Pelham, New York is engaged in conducting a scheme or device for obtaining money or property through the mails by means of false representations within the meaning of Section 3005 of Title 39 United States Code.
The respondent filed an answer which is, in effect, a general denial of the allegations of the complaint. The business in which the respondent is engaged is the sale of a plan which is advertised as a plan for developing the bosom or the bustline of the female.
The case was set down for hearing, initially, for September 7, 1976. On September 3, 1976, at the joint request of counsel for the parties, this case was continued to September 16. On September 14 a telephone call was received by this presiding officer from an individual who represented himself as being an associate of respondent's counsel. The caller requested a further continuance of the hearing. The reason for this request was stated to be that counsel for the respondent was under a doctor's care and was, and would be, physically unable to appear at the hearing on September 16. Accordingly the case was continued, by order dated September 14, to be held on September 30, 1976.
On September the 28th, respondent's counsel called the presiding officer and indicated that one of his witnesses was unavailable and would be unavailable to testify on September 30, but that the witness would be available to appear and testify on October 6. An Order was issued, in which it was provided that the hearing would be (1) continued at the request of counsel for the respondent and (2) set down for hearing, also at the request of respondent's counsel, for October 6 at 10:15 a.m. The request of respondent's counsel for the continuance to October 6 was confirmed by a letter to this presiding officer from respondent's counsel, dated September 28, 1976, which letter is a part of the file in this case.
In the late afternoon of October 4, 1976, a letter was received from a Louis E. Saunders, an attorney located in Jersey City, New Jersey. Mr. Saunders stated in his letter, which was dated October 1, 1976, that his office was associated with Mr. Amrod and was charged with the duty of presenting the witnesses some of whom he believed to be stationed in Washington, D.C., and others in New York and New Jersey. Mr. Saunders continued that he was presently engaged in the trial of a murder case which would not be concluded, probably, before October 6, and he needed about two weeks to prepare for this proceeding. He therefore requested a continuance of this case for two weeks.
In the more than two months during which this case had been on file and assigned to me, I had never, before October 4, 1976, heard of Mr. Saunders. All communications with respect to this matter had been from and to Mr. Amrod. I, therefore, called Mr. Saunders on October the 4th and suggested that he and Mr. Amrod get together and decide which attorney was to represent the respondent in this matter. I suggested with some emphasis that when that decision was made, whoever was selected to represent the respondent in this case had an obligation to appear today at the hearing, in view of the fact that the hearing had been set at this particular date and time at the specific request of the person who then represented himself to be respondent's counsel.
In addition, I called Mr. Amrod and I told Mr. Amrod that I was somewhat confused at the receipt of the letter from Mr. Saunders and I wanted to inquire if Mr. Amrod still represented this respondent. Mr. Amrod said that he did. During the course of our conversation Mr. Amrod acknowledged the fact that the case had been set down for hearing today at his request, and he further told me that he would be present at the hearing this morning.
Yesterday afternoon, at approximately 3:45 or thereabouts, Mr. Amrod called and said that he had just talked with Mr. Saunders who said that he, Mr. Saunders, was at that time talking in his office with an expert witness, but that the expert would not be available for the hearing today. I again explained to Mr. Amrod that the case had been continued to this morning at his request in order that he would be able to produce the witness who was unavailable for the hearing at the date that had earlier been set, namely September 30th. Mr. Amrod did state that he would be present, if he could get an expert. He said that if he could not get an expert to appear, then he assumed that he would have to be held to be in default, and shortly after that the conversation ended.
In my opinion every reasonable courtesy has been extended to Mr. Amrod. Mr. Saunders is a late entrant into this proceeding and I have no authorization from his client stating that Mr. Saunders represents him. I don't question the statement that Mr. Saunders does represent this client, but the fact of the matter is that in the two months--more than two months during which this case has been on our docket, there has been ample opportunity for somebody, if all of these lawyers are involved, to get an expert witness if one can be found.
To continue to put this case over time after time is completely to defeat the purpose of this statute, which has been stated many times to be not the punishment of the operator of a business but the protection of the buying public. In addition to this consideration, there is the further consideration that if cases are constantly being put over there will have to come at some time a day of reckoning when this mass of cases is going to have to be heard. Reasonable care must be exercised over the docket of cases that are set for hearing in order to provide for their reasonable and timely disposition.
In view of all of these circumstances, and in view of the procedural background of this case, the hearing proceeded this morning under Section 952.11(b) of our Rules of Practice, published at 39 C.F.R. 952.11(b), which provides that "If the respondent files an answer but fails to appear at the hearing, the presiding officer shall receive complainant's evidence and render an initial decision."
The first witness for the complainant was the postal inspector who investigated this matter. Through him there were received in evidence the advertisement of the product which caused him to initiate test correspondence with the respondent. By means of this test correspondence he caused a money order to be sent to the respondent, together with an order for the product. In due course, the product was received in exchange for the remittance made by the inspector. The product is a pamphlet which bears the title "Consumer Protected New Miracle Bustline Plan" and which sets forth a series of exercises in which one squeezes a rubber ball.
The exhibits and material ordered and received from respondent by the inspector in the conduct of this investigation were received in evidence in this proceeding as Complainant's Exhibits C-1 through C-7.
The charges that are set forth in the complaint are attached to this decision as Appendix A hereto, and the advertisement on which these charges are based is attached to this decision as Appendix B.
Comparing the charges in the complaint with the advertisement, it is patent that the language of the charges, in a number of instances, is lifted verbatim from the language of the advertisement. In those instances in which the language is not taken directly from the advertisement and placed into the charge, the charges do express the impression that the ordinary reader would receive when he reads the advertisement being used by respondent in the conduct of this business. Donaldson v. Read Magazine, 333 U.S. 178, 188-189.
The next witness called by the complainant was Dr. Mahoud Mourad who is a doctor of medicine, a professor of medicine at George Washington University School of Medicine in Washington, D.C., where he also is the director of the Department of Physical Medicine. Dr. Mourad outlined his training and experience in the field of medicine and it is apparent that he is highly qualified to appear and testify with respect to the area of medicine which is involved in this proceeding.
Dr. Mourad testified that the female breast is comprised largely of fatty tissue which is covered by skin. It is not attached to the body by muscles and it has no voluntary muscles as part of its makeup. There are in the breast small, smooth muscles which are not subject to voluntary control. In addition, there are some glands in the breast.
The size of the female breast is determined largely by heredity, although hormonal functions do play a part and have an effect in determining the size of the female breast. The sagging of the female breast occurs as a natural concomitant of age; usually after age 40 the breast begins to sag. Sagging of the female breasts can be ameliorated by surgical procedures. In addition, there are certain procedures such as the injection of foreign substances which would increase the size of the female breast. These, and the use of hormones, are the only medical procedures by which the breast can be increased in size or made more firm.
Dr. Mourad previously had examined the pamphlet being sold by this respondent and he testified that all of the exercises with the exception of two of them -- numbers 4 and 8 -- would cause the pectoralis major muscle of the individual to be exercised. Number 4 and 8 would exercise the shoulder muscles.
If a person followed for a period of many years, the exercise plan being sold by this respondent, there would be some increase in body measurements of the entire circumference of the body around the chest cavity. There would be, and there can be, no increase in the size of the female breast by following, as directed, the plan being sold by this respondent.
In summing up the evidence that has been received in this case and in formulating findings of fact on the basis of this evidence, it is found as follows:
1. The respondent does use the United States mails in the conduct of its business;
2. The respondent does seek remittances of money through the mails in the conduct of its business;
3. The respondent does make the representations which are set forth in the complaint; and
4. The representations found to have been made by the respondent are so completely contrary to medical experience and knowledge that they are materially false as a matter of fact.
On the basis of these findings of fact it is concluded as a matter of law that the respondent is engaged in conducting a scheme or device for obtaining money or property through the United States mails by means of false representations within the meaning of Section 3005, Title 39, United States Code.
Accordingly, an order of the type provided by 39 U.S. Code 3005 should be issued against this respondent.
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