March 15, 2000 In the Matter of the Complaint Against CONRAD GERMAIN 2020 Pennsylvania Avenue NW, Dept. 993 Washington, DC 20006-1811 and Dept. 860 8424-A Santa Monica Blvd. Los Angeles, CA 90069-4210 P.S. Docket No. FR 97-300 APPEARANCE FOR COMPLAINANT: Dorothy G. Campbell, Esq. Civil Practice Section United States Postal Service 475 L'Enfant Plaza, SW Washington, DC 20260-1127 APPEARANCE FOR RESPONDENT: Booker T. Evans, Esq. Michael J. Plati, Esq. Streich Lang Renaissance One Two North Central Avenue Phoenix, AZ 85004-2391
POSTAL SERVICE DECISION ON BREACH OF AGREEMENT
CONTAINING CONSENT ORDER TO CEASE AND DESIST
Complainant, the General Counsel of the United States Postal Service, has filed a Petition alleging that Respondent, Conrad Germain, has breached the terms of an Agreement Containing Consent Order to Cease and Desist (Agreement) executed on December 15, 1997. According to Complainant, Respondent has resumed seeking remittances through the mail using representations he agreed to permanently discontinue. Respondent has filed a timely reply in which he denies that he has breached the terms of the Agreement.
Findings of Fact
1. Complainant originally initiated this proceeding by filing a Complaint alleging that Respondent was engaged in a scheme or device to obtain money or property through the mail by means of materially false representations in violation of 39 U.S.C. §3005. Specifically, Complainant alleged that Respondent distributed solicitations seeking remittances through the mail for a psychic reading promotion, which falsely represented, "directly or indirectly, in substance and effect, whether by affirmative statements, implications or omissions, that: (a) A consumer purchasing Respondent’s information will receive at least $47,834.92; (b) Respondent knows when a consumer will receive a large sum of money; [and] (c) Respondent has special knowledge relating to the recipient’s life."
2. Although Respondent filed an Answer denying that his mailings made any of the representations alleged in the Complaint, on December 15, 1997, he entered into the Agreement which Complainant now contends he has breached. Under the terms of the Agreement, Respondent agreed to permanently discontinue the use of the solicitations attached to the Complaint (hereinafter "the original solicitations") and "the business practices alleged therein" (Agreement, Par. 2).
3. Respondent also consented to the issuance of the Cease and Desist Order attached to the Agreement, which was issued as Cease and Desist Order No. CD-4052 on January 7, 1998. The Cease and Desist Order prohibited Respondent from "falsely representing, directly or indirectly, in substance and effect, whether by affirmative statements, implications, or omissions that: (a) A consumer purchasing Respondents’ information will receive a specific sum of money; (b) Respondents know when a consumer will receive a specific sum of money; [and] (c) Respondents have special knowledge about the consumer prior to the receipt of information about the consumer used by the Respondents in performance of any service or analysis."
4. Subsequent to the execution of the Agreement and the issuance of the Cease and Desist Order Respondent began distributing a revised solicitation (hereinafter "the current solicitation") seeking remittances through the mail in connection with a new psychic reading promotion (Petition (Pet.) Exhibit (Ex.) 1 and 3). The name and address to which Respondent’s current solicitation seeks remittances and against which a false representation order is requested to be issued is RENEE CHARPAENE, 12358 Ventura Blvd. #608, Studio City, CA 91604 (id.).
5. Respondent’s current mailing is a one-page, two-sided, 8 ½ x 14" solicitation (Pet. Ex. 1 and 3). While the original solicitations were addressed "Dear Friend" and only had the recipient’s name on the order form, the current solicitation is addressed specifically to the recipient and refers to the recipient by name both in the body of the solicitation and on the order form (compare Complaint (Compl.), Ex. 1 and 2 and Pet. Ex. 1 and 3).
6. The current solicitation requests that the recipient send $20, along with specific personal information (the recipient’s date of birth and birth name), by a certain date in exchange for an Astrological Chart of Destiny which includes information regarding a lost inheritance intended for the recipient, instructions on "How to Eliminate Unseen Evil Forces", and instructions on how the recipient can contact their spiritual advisor (Pet. Ex. 1 and 3).
7. At the top of the current solicitation in bold type is the headline "Do You Have a Lost Inheritance Waiting for You?". The solicitation represents that Respondent was visited by the recipient’s spiritual guide, who revealed that the recipient is entitled to an inheritance, but must resolve an old grudge before receiving it. The solicitation claims that once the requested personal information is received Respondent will prepare an astrological reading that will reveal how the recipient can locate the lost inheritance. (Id.)
8. The original solicitations represented that Respondent had information that would lead to the recipient receiving "at least $47,834.92". The current solicitation states that Respondent is not sure of the exact amount of the lost inheritance, but it is a "substantial" amount that "could make [the recipient] very rich." (Compare Compl. Ex. 1 and 2 and Pet. Ex. 1 and 3).
9. The current solicitation further advises the recipient "that there is only a 30-day ‘window of opportunity’" from a specific date to obtain the lost inheritance information. The original solicitations promised to reveal when the recipient would have "the astrological potential of receiving at least $47,834.92 in the next few weeks." (Compare Pet. Ex. 1 and 3 and Compl. Ex. 1 and 2).
10. In the original solicitations, Respondent stated that the recipient had been contacted because Respondent "instinctively felt that there might be something very special" about the recipient’s birth chart (Compl. Ex. 1 and 2). Throughout the current solicitation, Respondent represents that the recipient has been contacted based on information Respondent received from the recipient’s spiritual guide, "someone ‘on the other side’ looking out for [recipient] and trying to make contact." Respondent claims to have specific knowledge from this spiritual guide about an event in the recipient’s life which is preventing the recipient from receiving an inheritance (Pet. Ex. 1 and 3).
Decision
Complainant contends that Respondent continues to distribute solicitations that make the representations he agreed to permanently discontinue. Respondent argues that the Petition should be denied because he has modified his original solicitations and his current solicitation does not make the representations he agreed to discontinue or those prohibited by the Cease and Desist Order.(1)
Although Respondent has modified his solicitations, he is continuing the business practices he specifically agreed to discontinue. Respondent’s current promotion continues to use a direct mail solicitation that "indirectly" and by "implication" represents "in substance and effect" that, through the use of psychic powers, Respondent has special knowledge relating to the recipient’s life and that he knows how and when the recipient can acquire a large amount of money. (Findings of Fact (FOF) 1 and 2).
Respondent’s current solicitation no longer directly represents that a recipient is guaranteed to receive a specifically stated minimum amount of money. However, by representing that Respondent has information that the recipient is entitled to a lost inheritance in a "substantial amount" that "could make [the recipient] very rich" Respondent continues to represent that a recipient purchasing Respondent’s information will receive a specific sum of money to which only the recipient is entitled (FOF 3 and 8). Respondent’s reference to a 30 day "window of opportunity" in which the recipient can acquire the lost inheritance information continues the representation that Respondent knows when a consumer will receive a large sum of money (FOF 3 and 9). Finally, by using the recipient’s name throughout the current solicitation and referring to the recipient’s spiritual guide, Respondent continues to represent that he has special knowledge about the recipient or relating to the recipient’s life (FOF 1, 3 and 10).
Conclusion
The record establishes that Respondent has resumed the business practices alleged in the Complaint and that his current solicitation makes the representations prohibited by the Cease and Desist Order as well as those Respondent agreed to permanently discontinue. Accordingly, Respondent has breached the terms of the Agreement. Pursuant to Paragraph 5 of the Agreement, a false representation order as described in 39 U.S.C. §3005(a) is issued herewith.
James A. Cohen Judicial Officer