is after a 2000 raw total.
Bearded Beast of Duloc
In the Matter of the Complaint Against
JOE WEIDER, TRAINER OF CHAMPIONS,
25 Maple Street at
Norwood, New Jersey 07648 and
531 32nd Street,
Union City, New Jersey 07087
P.S. Docket No. 1/131
December 13, 1972
David J. Knight Administrative Law Judge
For the Complainant:
James J. Robertson, Esq.
Consumer Protection Office U.S. Postal Service
Washington, D. C. 20260
For the Respondent:
Sheldon S. Lustigman, Esq.
Bass & Ullman 342 Madison Avenue
New York, New York 10017
INITIAL DECISION OF DAVID J. KNIGHT,
ADMINISTRATIVE LAW JUDGE
The Complaint, Default and Answer
By complaint filed July 12, 1972, the Consumer Protection Office of the U.S. Postal Service (Complainant) alleges that Joe Weider, also known as Joe Weider, Trainer of Champions (Respondent), is engaged in conducting a scheme or device to obtain money through the mails by falsely representing in advertising in national magazines and in directly mailed materials a course of instruction in the martial arts consisting of various techniques of combat to teach a person tactics of self-defense. The Complainant seeks the issuance of an order1/ under 39 U.S.C. 3005 which would require that the mail sent in response to these advertisements be returned to the sender appropriately marked as being in violation of the cited section of the statute.
The complaint alleges that Respondent's advertisements as they appear in magazines offer a "free" booklet and the Respondent's complete course in self-defense. The complaint further alleges that those ads, together with the materials sent in response to them, represent that those who purchase the course "ahead of the crowd" will receive extra-special personalized attention; that the purchaser's development will be personally supervised by the Respondent; that specially patented methods are contained in the lesson on karate; that the contents of the course are secret; and that the purchaser will master all of the secrets of history's most ferocious fighters in 30 days in his home without the benefit of personal instruction. All of these foregoing representations are claimed to be materially false as a matter of fact. The complaint states that Respondent seeks remittances ranging from 25 cents to $40.00 for the purchase of the course through the mails.
The complaint was served by delivery in hand to an agent of Respondent on July 17, 1972, and--under the Rules of Practice of the Postal Service--the answer should have been filed within 15 days of that date or August 1, 1972. None was received but on August 8, 1972, the Judicial Officer permitted the filing of a motion to remove the default. That motion was filed on August 14, 1972, together with the answer to the complaint. Based on that motion and the Complainant's response, the Judicial officer--on August 23--found that the failure to answer within the prescribed time was not excusable and entered an order requiring the Postmaster at Norwood, New Jersey (Respondent's mailing address) to retain the Respondent's mail which otherwise would have been returned to the sender had the default been considered as complete. The Judicial Officer set a time within which the Respondent could move to vacate the retention of the mail order on the condition that the Postmaster would continue to detain the mail. On that condition, the Judicial Officer would remand the proceeding to the Administrative Law Judge for an expeditious hearing and recommended decision.
A motion was received and Respondent argued that the condition sought was beyond the statutory power of the Judicial Officer but that Respondent had no alternative but to "agree" to its imposition. The Judicial Officer, on September 7, 1972, found that the motion failed to set forth sufficient grounds for setting aside the mail detention order and he directed that the Postmaster treat Respondent's mail in accordance with the usual terms of mail stop orders which would mean that mail would be returned to the sender marked as being in violation of the cited statute.
Thereafter, on September 15, 1972, Respondent moved for reconsideration of the denial of its motion and asked that the remedial stop order be set aside and the proceeding be remanded for hearing and decision. In this motion is the statement that . . .Respondent requests and consents without reservation that the remedial order be set aside under the condition that the mail in question continue to be retained at the Norwood, New Jersey Post Office until completion of the administrative proceeding.
Thus, at this time the mail continues to be held by the Postmaster but it is not being returned to the senders since, on October 4, 1972, the Judicial Officer granted the motion for reconsideration. Also on that day, the matter was assigned to me and a hearing ordered to commence on October 13, 1972, at Washington, D. C.
As noted, the Respondent's answer was filed on August 14 with the flow of papers necessary in the course to wash away the default. The essence of the answer is that Respondent does not falsely represent the course it offers for sale. It admits that it uses the mail in its business and that the ads and material attached to the complaint are true copies except for one page which apparently deals with other offers by Respondent not within the scope of the complaint. Evidence as to Respondent's Representations
Postal Inspector Michael W. Ryan, the Complainant's first witness, responded to three magazine advertisements (exhibits C-1, 2 and 17) which offer a booklet entitled "How To Be A Destructive Self-Defense Fighter In Days" free, except for 25 cents to cover the cost and handling. These ads also promote the course in self-defense with such statements as:
RUSH COUPON NOW] Only swift action by you NOW-- this very minute--will bring you a copy of this limited course while they last. FEAR NO MAN in just 24 hours--this absolutely free Terror-Fighting Course that I am anxious to send You shows how to swiftly start using my Terror-Fighting Secrets. . . In just 24 hours--You start using these destructive self-defense secrets to render any bully twice your size absolutely helpless in seconds]
You can become a terrifying, destructive, self-defense fighting machine in just 30 days Complete fighting mastery and confidence in 24 hours With these "KNOW-HOW" secrets, you will overnight become a walking "TERRIFYING FIGHTING MACHINE". If you really want to be a fearless fighter in 30 days, rush in the free coupon now and get your copy of this course while this limited offer lasts.
Every page ablaze with trip hammer secrets, showing you how you can unleash in 24 hours the most ferocious and dynamic self-defense fighting secrets. . .
The foregoing statements appear in the ad in MALE magazine issued in September 1972 (Exhibit C-1). And in the April 1972 (Exhibit C-2) edition of the same magazine the ad states in addition to those already specified:
I PROMISE YOU THAT IN 24-HOURS I can give you the TERROR FIGHTING SECRETS that will etc. These "KNOW-HOW" secrets. . .put into one course that I am anxious to send to you showing how you, and your family in just 15 minutes a day in the privacy of your own home. . .and YOU CAN BECOME A DESTRUCTIVE SELF-DEFENSE TERROR FIGHTING IN JUST 30 DAYS]
Exhibit C-17 which is an ad appearing in the MECHANIX ILLUSTRATED of April 1972 does not go into as much detail as the above but does state to open the ad that ". . .in just 15 minutes, I'll have you using my TERROR-FIGHTING secrets".
The Postal Inspector remitted 25 cents on January 12, 1972, and asked for the booklet which was not received. Rather, the Respondent sent a letter acknowledging receipt of the request for the booklet which it states was enclosed. Another pamphlet was enclosed describing the course itself consisting of 12-booklets each on an individual art within the martial arts such as judo, boxing, wrestling, etc., and information on how to purchase the course for $40.00. There are several ways to make this purchase, and if the buyer agrees to take the complete 12 booklet course at one time, the cost would be $30.00. Otherwise, $10.00 is required for the first two, then $5.00 is payable per week for six weeks and the remaining 10 booklets are sent one a week.
The main difference between this pamphlet and the magazine advertisements is that the Respondent extended the 30-day period to learn all of the secrets to 12 weeks. The letter acknowledging the purchaser's request for the booklet leads off with, "LET TIGER-TOUGH JOE WEIDER MAKE YOU COMMANDO-TOUGH in just 12 short weeks".
On April 13, 1972, the Postal Inspector remitted the $30.00 for the complete 12-booklet course. And on April 20, 1972, he received an offer from the Respondent under which he could receive the entire course for only $24.00. But again, this pamphlet represented that the course would turn the purchaser into "A TERRIFYING DESTRUCTIVE SELF-DEFENSE FIGHTER IN 30 DAYS". It appears that the Inspector's $30.00 and the Respondent's discount offer crossed in the mail since the Inspector did not mail the money directly but sent it through a post office in Indiana which had been established as a test station for the purposes of this proceeding. In any event, on April 21, the Inspector mailed a request for a $6.00 refund but never got any response to that.
Finally, on May 15, 1972, the course itself was received and, although the Respondent did mail it out some time in April (the postmark lacks the date), it was not received at the Indiana Post Office until May 9 and then forwarded to the Inspector in Washington, D. C.
The record does not show that the Inspector, using the test name of one Phillips to receive all of the foregoing material, ever received the booklet entitled "How To Be A Destructive Self-Defense Fight in Days" for which he originally remitted 25 cents. However, using a test name of one Regan with a Washington, D. C., address, the Inspector, on April 11, 1972, requested the "How To" booklet sending along another 25 cents. He received it on May 15, 1972. Generally, the booklet advises the purchaser that he will become an expert in the 12 arts which the course covers and each of these is described. Again, the cover of the booklet announces "BE A DESTRUCTIVE SELF-DEFENSE FIGHTER IN JUST 30 DAYS". But, in describing the course, each lesson is given at one week intervals and a diploma is said to be awarded after completion of the 12 courses. The booklet demands enrollment immediately in the course so that the enrollee will be ahead of the crowd and receive the Respondent's special personalized instruction. Joe Weider is stated to personally supervise the development of the subscriber to make him "in just about 12 short weeks" a supreme self-defense terror-fighter (page 3 of Exhibit C-13(c)). The techniques are described as secret and the exposition of lesson 11 on karate states that the lesson will be quickly learned through the Respondent's "special patented methods".
No further response was made by the Inspector under the name of Regan but on July 6, 1972, he received more material still at the $40.00 price on installments or at $30.00 in full at once. On July 25, 1972, a discount offer was received presenting the course for $24.00; and on August 17, 1972, a further discount was received offering the course for $12.00 if paid without installments. This offer was marked as "Absolutely your last chance" to join the Weider society of terror fighters.
The Complainant's remaining witness and the Respondent's only witness are experts in the art of karate which is a style of unarmed combat and means "empty hand" in Japanese. The main thrust of these witnesses' testimony went to lesson 11 of the Respondent's course dealing with the subject of karate. Complainant's witness has been instructing in the art of karate for 12 years and holds a fourth degree black belt in tae kwon do, the Korean form of karate. He testified that the average person cannot learn karate without the aid of personal instruction and that one must practice the art two hours a day at least three times a week, a total of six hours per week. He also stated that to a person knowledgeable in karate, there are no secrets contained in lesson 11 of Respondent's course. This witness does not know whether any of the methods put forth in lesson 11 are patented.
Respondent's expert witness, holding a fifth degree black belt in the Okinawan form as well as others, testified that lesson 11 could teach the fundamentals of karate without the aid of personal instruction. However, such instruction would be very beneficial--in fact, there is no substitute for it--and the better way to learn. According to him, the Respondent's letter to the student opening each lesson does qualify as personal instruction. However, if a properly conditioned person follows the course and practices faithfully, he could be able to do the techniques shown in lesson 11 because they are simple with nothing that could be considered as advanced. That is this witness's opinion on whether a person could achieve the objectives of lesson 11 without the benefit of personal instruction. Again, this witness believed that some of the methods could have been patented and to the uninformed, the techniques of the delivery of the blows with the feet and hands are secret.
The Amendment to the Answer
At the hearing, the Respondent verbally moved to amend its answer to claim the First Amendment to the Constitution. Basically, the Respondent contends that the amendment protects the course from the Complainant's attack and that the ads and other literature accurately depict what is contained in that course. The Complainant maintained that the efficacy of the course was not brought into issue. Its attack goes to the representations made by the Respondent advertising its course. Its proof was aimed at showing that those representations are not supported by the text of the courses offered for sale.
Discussion and Findings of Fact 2/
Under the policy of the Postal Service, the Respondent's course is beyond attack, the protection of the First Amendment being unassailable. The issue is whether the advertising misrepresents the course. See In the Matter of the Complaint Against Parker Publishing Co. , P.O.D. Docket No. 3/80, the decisions of the
The Respondent admits and the evidence shows that the mail is used to offer the course and receive the money for it and I so find. The amounts received by Respondent range from 25 cents for the "How To" booklet up to $40.00 for the complete course in self-defense.
Paragraph IV(1) of the complaint alleges the falseness of Respondent's offer to send a free booklet in return for 25 cents covering the cost of handling. The Postal Inspector in the name of one Phillips asked for the booklet but never received it. In the name of Regan, the Inspector did receive it after remitting his 25 cents. I find that the failure to send the booklet to Phillips does not constitute a material misrepresentation. Phillips did receive further correspondence from the Respondent but, I assume, through oversight the booklet was not included. This allegation is not sustained.
Paragraph IV(2) alleges that Respondent's magazine advertising offers the course in self-defense to those who respond to those ads. I find that these magazine ads purport to offer to send the complete course in response to an individual using the coupon. There is nothing in any of these ads to indicate that there is any more to the course than the booklet which is entitled "Be a Destructive Self-Defense Fighter In Just 30 Days". The tenor of these ads is that in 24 hours after receipt of the booklet, a person begins using the secrets and will be the fighting machine in 30 days. In fact, however, the booklet is an invitation to buy the 11 booklet course for up to $40.00 and merely describes that course lesson by lesson. I find that these ads misrepresent that which is to be sent in response to them and that this is a material misrepresentation misleading the public into believing that the course is free (save for the 25 cents) and will be sent complete.
Paragraphs VII (1), (2) and (3) of the complaint allege that statements in the "How To" booklet concerning the personal attention and supervision a subscriber will receive for quick enrollment and the special patented teaching instruction of the karate lesson 11 are materially false. I find that the evidence sustains these allegations. The Postal Inspector subscribed to and received the course. He asked for the discount to which he was entitled for responding quickly and heard nothing from the Respondent. He received the course but no follow-up as to his progress. The inference to be drawn from these facts is that Respondent's only interest is in selling the course but that the development of the student is left to that student. I find that the Respondent represents to offer personalized attention and personal supervision in the "How To" booklet but does not do so and that these representa- tions are materially false. Once receiving the course, the student is left to his own devices and the Respondent shows no further interest. The letter signed by Joe Weider at the opening of each lesson does not qualify as personal attention or supervision but merely tells the subscriber to practice what is described and how complete the particular lesson is. As to the special patented method of instruction in karate (lesson 11), I find no difference there than in any other of the lessons and lesson 11 itself only shows the types of blows that may be delivered to vulnerable areas of the body. Thus, the booklet in this regard falsely represents what is offered in the course itself. Lesson 11 does not indicate that the instruction method is in any way patented and no patent number is shown. The only reference to the patent is found in the booklet.
Paragraph VII(4) of the complaint alleges the falsity of the representations that the contents of the course are secret. They are not secret to any informed person on the subject of karate as the testimony of the expert witnesses shows but they are as to the layman. The parts of the body of the attacker that may be used as weapons and the vulnerable areas of the body are described in lssson 11 and to a large extent would not be known to one uninstructed in karate. However, I find that the tenor of the ads as established by the quotes referred to supra represent that these are fighting techniques unknown even to the informed. In addition to the statements quoted above, it is added that these secrets have been guarded for 5000 years and took 20 years to uncover at a cost of over $200,000. The implication of these statements is that the Respondent is going to reveal to an enrollee that which he alone knows. The testimony of the two expert witnesses shows that the course does not contain matter which they are unfamiliar with. I find that the representations made by Respondent that his course contains terror-fighting secrets are materially false.
Finally, I find that the complaint's allegation on the falsity of the representations on an enrollee's ability to master the secrets of history's most ferocious fighters in 30 days without personal instruction is sustained. The course itself is in 12 week segments or over twice the 30-day period repeated over and over in the magazine ads and literature. This misrepresentation occurs at the inception of the process in the magazine advertisements and taints that process even thought the "How To" booklet describes the 12 week course. But the cover of that booklet says it can be done in 30 days. Thus, there is a variance between the ads and the course itself on this point. When coupled with the statements indicating that the secrets could be used within 24 hours of receipt, I find that these representations are materially false for the course in its entirety must be mastered before the terror-fighting machine will emerge. And that assumes the truth of the course which I am bound to do. Since no personal attention or supervision is given by the Respondent, I find that any enrollee, if he follows the course alone, must learn it in the privacy of his home as stated in the ads and, therefore, no false representation exists on that aspect of this allegation. Again, whether he can learn it in that manner is beyond the scope of this proceeding for that brings into issue the truth of the course itself.
Conclusion and Recommended Order
Based on the findings that the Respondent offers a "free" course which is false; that it offers personal attention and supervision which is false; that its method of instruction is specially patented which is false; that it offers to teach secrets of self-defense and fighting techniques which is false; that it is possible to become a fighting machine in 30 days which is false; and that Respondent uses the mails to obtain money solicited by its advertisements and mailed literature, I conclude that the Respondent is engaged in conducting a scheme or device to obtain money through the mail by falsely representing its course.
The Respondent requested a conditional stop order which would permit it to correct any deficiency in its advertisements that may be found without necessitating a return of the mail to the senders. This is based on the use of the term "may" in the mandatory. However, since all the mail received in response to the described advertisements is sent with reliance on statements that are materially false, the mail should be returned to the sender who may thereafter respond to proper advertising if the Respondent sees fit to correct its statements.
At the hearing, the Complainant moved to amend the complaint to include another address of the Respondent through which it offers its terror-fighting course. The motion was granted even though it was not shown that any mail was received there. The "How To" booklet solicited responses to a Union City, New Jersey, address which is to be included in the order concerning only the terror- fighting course.
I recommend that an order described in 39 U.S.C. 3005 be issued and that it apply to Respondent's places of business at 25 Maple Street, Norwood, New Jersey 07648, and at 531 32nd Street, Union City, New Jersey 07087, on mail received in response to ads and literature for the terror-fighting course. Based on Respondent's agreement which led to the removal of the default, the order should also be applied to the mail being held during the pendency of this proceeding.
1/ 39 U.S.C. 3005 reads, "Upon evidence satisfactory to the Postal Service that any person is engaged in conducting a scheme or device for obtaining money or property through the mail by means of false representations, . . . the Postal Service may issue an order which-- . . ." is as described above.
2/ The parties have submitted proposed findings of fact and conclusions of law which have been considered. To the extent indicated herein, these are adopted. Otherwise, they are rejected as unsupported by the weight of the evidence or are immaterial. Judicial Officer issued December 14, 1971, and March 9, 1972. Thus, the allegations of the complaint as these refer to the advertising must be tested against the evidence.
"Let bravery be thy choice, but not bravado."
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