In the Matter of the Complaint Against AIRLINES SCREENING OFFICES Suite 111 1341 South State at Salt Lake City, UT 84115 P.S. Docket No. 8/114; 08/20/80 Duvall, William A. APPEARANCE FOR COMPLAINANT: Daniel S. Greenberg, Esq. Law Department United States Postal Service Washington, D.C. 20260 APPEARANCE FOR RESPONDENT: H. Ralph Klemm, Esq. 510 Ten Broadway Building Main and Third South Salt Lake City, UT 84101
This proceeding was initiated on June 9, 1980, when the Consumer Protection Division of the Law Department of the United States Postal Service, the Complainant, filed a Complaint in which it is charged that the Respondent, Airlines Screening Offices, Salt Lake City, Utah, 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 39 United States Code, Section 3005.
It is charged that Respondent attracts attention to the alleged scheme by means of matter, called the advertisements, typical copies of which are attached to the Complaint as Exhibits A, B, C and D. 2/
It is charged in Paragraph II of the Complaint that by means of said advertisements, and in similar matter, Respondent represents directly or indirectly, by means of affirmative statement, implication or admission in substance and effect:
(a) That Respondent has been authorized by most of the major airlines to review the job applications of people seeking employment in the following positions:
(1) Flight attendants;
(2) Ticket agents;
(3) Ramp personnel;
(4) Customer service;
(5) Reservations agents;
(6) Clerical positions;
(b) That Respondent's favorable recommendation to an airline is likely to be of significant benefit to job applicants in obtaining employment with the airline;
(c) That Respondent has been authorized by most of the major airlines to make offers of employment to applicants for the positions enumerated in subparagraph (a), supra.
At the hearing, by stipulation of the parties, paragraph II(b) was dismissed without prejudice, so that the Complaint on which the matter went to hearing consisted of paragraphs II(a) and II(c).
In the third paragraph of the Complaint, it is alleged that the representations set forth in the Complaint are materially false as a matter of fact.
The fourth paragraph of the Complaint contains the allegation that based upon said representations, Respondent induces readers thereof to remit money or property through the mails to the Respondent at the captioned named address.
On June 30, 1980, the Respondent's Answer to the Complaint was docketed. Basically, the Answer consisted of general and specific denials of the allegations of the Complaint, plus the further defense that the Respondent is engaged in conducting a legitimate business, and that it provides a valuable service to its patrons in the form of information and counselling.
In addition, the Respondent stated in the Answer that it now provides an express disclaimer with each piece of mail that it sends out, which reads as does Respondent's Exhibit 1, which was received in evidence in this proceeding.
Subsequently, on July 3, 1980, the Complainant filed, among other things, a request for admissions of facts, and insofar as it is now pertinent, the most significant of those requested admissions of facts were the following found in paragraph 4(b) of the document containing the request for the admissions of facts:
B. (1) That Respondent has not been authorized by most of the major airlines to review the job applications of people seeking employment in the positions enumerated in subparagraph II (a) of the complaint;
(2) That Respondent does not make recommenda- tions to airlines in regard to job applicants;
(3) That Respondent's favorable recommendation to an airline is not likely to be of significant benefit to job applicants in obtaining employment with the airline;
(4) That Respondent does not make offers of employment to applicants for the positions enumerated in subparagraph II (a) of the complaint;
(5) That Respondent has not been authorized by most of the major airlines to make offers of employment to applicants for the positions enumerated in subparagraph II (a) of the complaint.
In response to that request for admissions, the Respondent, in a document filed July 14, 1980, admitted some of those propositions of fact, and in a telephone conference conversation held prior to the date of the hearing, and at the opening of the hearing on July 30, 1980, the Respondent admitted those propositions of fact that are set forth as B(1), (2) and (5) in the paragraph immediately above.
In view of these admissions, it now becomes necessary only to show whether or not the Respondent makes the representations which are set forth in the Complaint as paragraphs II(a) and (c).
The crux of these paragraphs is that the Respondent has been authorized by most of the major airlines (1) to review the job applications of people seeking employment in certain specified positions, and (2) to make offers of employment to applicants for the positions enumerated in subparagraph (a). Having in mind the scope of the case in its present posture, reference will now be made to some of the advertising and promotional materials used by the Respondent.
Received in evidence as Complainant's Exhibit 1 was the advertisement which appeared in the Chattanooga Times on Sunday, January 20, 1980, and a copy of which is now Appendix A. As can be seen from a reading of this advertisement, it appears that the Respondent is in communication with major airlines, because it has advice that they are now hiring for certain specific positions. It further is indicated that Respondent knows the characteristics a person must have in order to be accepted for employment by these major airlines.
The name, itself, of the Respondent is suggestive. Airlines Screening Office under any normal interpretation, means that for some, if not most, of the major airlines it does the initial screening, at least, and more importantly, the readers of this advertisement are told to apply to this screening office.
If a person is looking for employment in a particular field of endeavor, and he sees an advertisement with respect to job opportunities, possible openings for positions in that field of endeavor, and is told to apply to a particular place, it is bound to create in the mind of the average reader, or almost any reader, that at least one way to see if a position is available for him is to apply to this particular concern, which is holding itself out as the agency that does the initial screening of applicants for employment in that line of work.
It is further noted that the applicant is to give a brief statement of his background, the job that he is applying for, and he is advised that the Airlines Screening Office, 3/ Respondent in this case, is an "Equal Opportunity Employer." Respondent's owner, Dino DiLello, said that language is a printing mistake. (Tr. 29) It has been his practice when one of his advertisements was printed in a newspaper that an "s" was supposed to be added to that last word making it read "Equal Opportunity Employers." In his view that would indicate that it was the airlines who were the employers. That may or may not be the case. In any event, it would appear to the average reader that Airlines Screening Office had a definite role to play in the employment process.
It is a singular coincidence that an identical mistake could be made in so many instances. For example, Complainant's Exhibits 10 and 11 contain this same bit of information in the last three words, Equal Opportunity Employer. It is not known where these advertisements appeared in print, but it is perfectly apparent to the casual reader that the type is different in each case. Also, the size of type is different. The strong indication is, therefore, that the advertisements appeared in different publications, although they may have appeared on the same date. In any event, the circumstantial evidence is strong that they appeared in different publications.
When persons respond to the advertisement, as they have, they were then sent a copy of a letter, which was received in evidence as Complainant's Exhibit 2. This advises the prospect that his communication has been received, that he has successfully passed an initial screening, that he meets the basic requirements, but that there is more screening ahead of him.
He is then told to fill out a form, which is identified by the caption "General File" which calls upon the individual to give a statement of his background, and to send it along with the $15 application fee that is required to the Respondent. Thus, the person who has been judged by the background statement that he submitted in response to the advertisement, is told that he has to continue and pass another plateau in the screening process. The applicant can do this for $15 and he is sent a form to fill out for that purpose.
When Respondent receives the "General File" with the $15, the applicant is sent what was received in evidence as Complainant's Exhibit CX-6. This was best described by Respondent's Counsel when he said that it shows "how to make application to the airlines for employment." (Tr. 106)
In this publication, the prospective employee of an airline is told for the first time that he is to apply to the airlines, or to the personnel office of the airline, and he is given the address of airline personnel offices, but unfortunately by this time he has paid his $15, and he is not given a final, definitive answer as to whether he is accepted or rejected as an airline employee. He is told that he really must file the application with the airlines to find out if there is an opening and if he may fill the opening.
The meaning of advertising representations is to be determined from a consideration of an advertisement in its totality, and assessment of the impression that it most probably will create in ordinary minds. Donaldson v. Read Magazine, 333 U.S. 178, 1948; Vibra-Brush Corp. v. Schaffer, 152 Fed. Supp. 461 (S.D.N.Y., 1957); Borg-Johnson Electronics v. Christenberry, 169 Fed. Supp. 746 (S.D.N.Y., 1959).
Express representations are not required. It is the net impression that the advertisement is likely to make upon purchasers to whom it is directed which is important. Even if an advertisement is so worded as to not make an express representation, if it is artfully designed to mislead those who are responding to it, the mail fraud statutes are applicable. G. J. Howard, v. Cassidy, 162 Fed. Supp. 568. In this connection, there is an apt statement that is found in the case of Virginia State Board of Pharmacy, et al. v. Virginia Citizens Consumer Council, Inc., et al., 425 U.S. 748, page 772, in footnote 24, in which the Court pointed out that "it is not difficult to choose statements, designs and devices which will not deceive." This statement is particularly applicable in this case. It would be so easy for the Respondent in his advertisements to state precisely what his undertaking is, and not to use the type of advertising language which in this instance has been used, which has the effect of creating in the mind of the reader that the Respondent is offering something which in fact the Respondent cannot produce, cannot perform.
Applying the standards from the cases cited above, I find that the Respondent does make the representations substantially as characterized in paragraph II(a) and II(c) of the Complaint.
That finding plus the admission by the Respondent, which was set forth earlier here, inevitably leads to the conclusion that the Respondent is, as charged, 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 went to some length to point out that after the Respondent was visited by two Postal Inspectors, Mr. DiLello went to consult his attorney either that same day or the following day. Upon recommendation of his attorney he changed the advertisement. He composed, or had composed, a disclaimer, a copy of which has been received in evidence as Respondent's Exhibit 1. This disclaimer was sent out to all persons who responded to the advertisement, or who submitted an order for Respondent's product. Respondent changed certain other items of its promotional literature. In short, Respondent maintains that it never made the representations complained of, but even if it had, by changing the literature in the ways indicated, it abandoned its former practices and there is now no basis for the issuance of a mail-stop order.
On this point, the Supreme Court of the United States said in United States v. W. T. Grant Co., 345 U.S. 629, 632 (1953):
"Both sides agree to the abstract proposition that voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i.e., does not make the case moot. United States v. Trans-Missouri Freight Assn., 166 U.S. 290 (1897); Walling v. Helmerich & Payne Inc., 323 U.S. 37 (1944); Hecht Co. v. Bowles, 321 U.S. 321 (1944). A controversy may remain to be settled in such circumstances. United States v. Aluminum Co. of America, 149 F.2d 416, 448, (1945), e.g., a dispute over the illegality of the challenged practices. Walling v. Helmerich & Payne Inc., supra; Carpenters Union v. Labor Board, 341 U.S. 707, 715 (1951). The defendant is free to return to his old ways. This, together with a public interest in having the legality of the practices settled, militates against a mootness conclusion. United States v. Trans-Missouri Freight Assn., supra, 309, 310. For to say that the case has become moot means that the defendant is entitled to a dismissal as a matter of right. Labor Board v. General Motors Corp., 179 F.2d 221 (1950). The Courts have rightly refused to grant defendants such a powerful weapon against public law enforcement.
The Grant case has been and continues to be cited and followed by many, many District and Circuit Courts as well as in the following sampling of Supreme Court decisions: United States v. Phosphate Association, 393 U.S. 199, 203 (1968); Allee, et al. v. Medrano, 416 U.S. 802, 811 (1974); and Hampton v. Mow Sun wong, 426 U.S. 88, 98 (1976).
It is well established, therefore, that the fact that a person or a business has abandoned certain practices which it engaged in earlier does not mean that a tribunal having jurisdiction of a case involving those former practices must terminate that proceeding.
On the basis of the record in this case, an Order of the type for which provision is made in 39 U. S. Code § 3005, should be issued against the Respondent herein substantially in the form attached.
1/ This decision was rendered orally at the close of the hearing. It has been edited and transcribed for formal issuance.