In the Matter of the Complaint ) September 25, 1992 Against ) ) NEW AGE ENTERPRISES, INC. ) 1821 Avenue J ) Brooklyn, NY 11230-3808 ) ) ALEXANDER EVANS, II ) 1821 Avenue J ) Brooklyn, NY 11230-3808 ) P. S. Docket No. 36/161APPEARANCES FOR COMPLAINANT: H. Richard Hefner, Esq. Robert DeMuro, Esq. Law Department United States Postal Service Washington, DC 20260-1144 APPEARANCE FOR RESPONDENT: Alexander Evans 1405 Avenue Z, Suite 264 Brooklyn, NY 11235-3811
ON BREACH OF CONSENT AGREEMENT
The Consumer Protection Division, Law Department, United States Postal Service (Complainant) has filed a Petition alleging that Alexander Evans (Respondent) has breached the terms of an Agreement Containing Consent Order to Cease and Desist (Agreement) executed on September 26, 1990. According to Complainant, Respondent is continuing to solicit remittances through the mail in connection with a multi-level marketing promotion using the representations which he agreed to discontinue. The name and address to which Respondent currently seeks remittances, and against which Complainant sought the issuance of an interim detention order and now seeks the issuance of a false representation order, is Prosperity, 1405 Avenue Z, Suite 264, Brooklyn, NY 11235-3811.
On the basis of the information contained in the Petition and the exhibits attached thereto, an interim detention order as authorized by paragraph 8(c) of the Agreement was issued directing the detention of mail to the above name and address. The interim detention order granted Respondent a period of 10 days in which to respond to the Petition. By letter received on August 20, 1992, Respondent filed a timely response to the Petition in which he admits he is engaged in a multi-level marketing program, but denies he has breached the terms of the Agreement. Since the facts relating to the breach allegations are not in dispute, this matter is being decided on the record. Cf. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986); United States v. Cheramie Bo-Truc #5 Inc., 538 F.2d 696, 698-99 (5th Cir. 1976); Dennis Ward, P.S. Docket No. 37/118 at 2 (P.S.D. Oct. 16, 1991); J.W. Arthur, P.S. Docket No. 20/85 at 7 (P.S.D. Dec. 23, 1987); Mummers, P.S. Docket Nos. 22/67 & 22/99 at 4 (P.S.D. Aug. 31, 1987).
1. On September 26, 1990, Respondent executed the Agreement which is the subject of this proceeding (see Agreement).
2. By the terms of the Agreement, Respondent agreed that the promotional activities and representations challenged in the Complaint would be discontinued and not "be resumed, directly or indirectly, under any name or names, or through any corporate or other device" (Agreement, ¶ 4).
3. Respondent in addition agreed that a breach of the Agreement would serve as a basis for issuing a false representation order as described in 39 U.S.C. § 3005 (Agreement, ¶ 8).
4. Following the execution of the Agreement, Respondent distributed solicitations almost identical in text and format to the promotional materials attached to the Complaint (Flynn Declaration (Decl.) ¶ 4; compare Flynn Decl. Exh. 4 with Exh. 1).
5. In the solicitations, Respondent seeks remittances to the trade style Prosperity at 1405 Avenue Z, Suite 264, Brooklyn, NY 11235-3811. The Brooklyn, NY address is the address of a commercial mail receiving agency where Respondent receives mail (Flynn Decl. ¶ ¶ 4 & 5, Exh. 5).
The only issue to be decided in this proceeding is whether Respondent is continuing to make the representations which he agreed to discontinue. See Mark Eden v. Lee, 433 F.2d 1077, 1082-83 (9th Cir. 1970); American Consumer, Inc. v. USPS, 427 F. Supp. 589, 591 (E.D. Penn. 1977); Dennis Ward, P.S. Docket No. 37/118 at 6 (P.S.D. Oct. 16, 1991); Associated Writer's Guild of America, P.S. Docket No. 12/180 at 8 (P.S.D. June 6, 1990). A comparison of the Prosperity solicitation with the promotional materials attached to the Complaint shows that the solicitations are almost identical in both text and format. Since Respondent is continuing to make the representations which he agreed to discontinue, he is in breach of the Agreement. Accordingly, pursuant to paragraph 8 of the Agreement, the False Representation Order sought in the Petition and authorized by 39 U.S.C. § 3005 is issued with this Decision.
James A. Cohen Judicial Officer