In the Matter of the Complaint Against
February 17, 1998
APPEARANCE FOR COMPLAINANT:
Christine M. Taylor, Esq.
APPEARANCE FOR RESPONDENT:
Thayer C. Lindauer, Esq.
This proceeding was initiated on May 15, 1997, when the General Counsel for the United States Postal Service filed a Complaint alleging that Jeffrey Walker, d/b/a High Opportunity Petroleum Enterprises (HOPE),(1) violated 39 U.S.C. §3005 by engaging in a scheme or device for obtaining money or property through the mail by means of false representations, and by using the mail to promote a lottery.(2) Specifically, the Complaint alleges that Respondent uses the mail to disseminate information, and receive payments, in connection with his multi-level marketing program which is, in reality, a lottery. The Complaint also alleges, in paragraph 20, that Respondent makes the following representations, and that these representations are false and material:
In a timely filed Answer, Respondent denied conducting a lottery or making any false representations. A hearing was held in Washington, DC on September 30-October 1, 1997. Both parties appeared and were represented by counsel. The Postal Service presented testimony from two postal inspectors, a university professor who testified as an expert in marketing, and four consumer witnesses who had formerly been involved with HOPE. Respondent Jeffrey Walker testified in his own behalf, and Respondent also called Peter Spary, both as a fact witness and as an expert in multi-level marketing.
Both parties filed post-hearing briefs, in the form of proposed findings of fact and conclusions of law, and Respondent filed a reply brief. To the extent indicated below, proposed findings and conclusions have been adopted; otherwise, they have been rejected as irrelevant or contrary to the evidence. The following findings of fact and conclusions of law are based on the entire record, including all testimony and documentary evidence introduced at the hearing, and observation of the witnesses and their demeanor.
FINDINGS OF FACT
1. High Opportunity Petroleum Enterprises, Inc. (HOPE) is a company created by Respondent Jeffrey Walker, along with Mark Manuel and Greg Manuel, in November 1996. It was incorporated in Delaware on December 11, 1996, and was issued a Certificate of Authority to do business in Texas on December 13, 1996. Respondent Walker has been the President of HOPE since the company was created. (Tr. 236-39; Cx-8)(3)
2. The plan behind HOPE was to distribute, through a network marketing system, a pre-paid debit card with which a person could purchase gasoline. (Tr. 239-40) Network marketing is a system by which individuals recruit other individuals, to form a network for the distribution of a product or service, instead of selling the product through retail stores. (Tr. 83-84) This is often called multi-level marketing, by which individuals earn commissions not only on their own sales, but also on sales made by people they recruited, and by people who those people recruited. (Tr. 92-93; 341)
3. To establish a distribution system, HOPE advertised on the Internet, and by word-of-mouth in the world of network marketing, for people to become HOPE Representatives. (Cx-3; Tr. 103, 216-17) The Internet information directed people to contact HOPE at 4360 Beltway Place, #200, Arlington, TX 76018, and also listed a telephone number, fax number, and e-mail address. (Cx-3, p. 27)
4. The Internet advertisement stated that HOPE was "The First And Only Networking Marketing Company To Offer Prepaid Fuel Cards To The World." (Cx-3, p. 1) The advertisement also offered "a fresh, new, and exciting way to make a living, or just some part time income . . .." (Cx-3, p. 2), and touted the advantage of network marketing versus "traditional distribution." (Cx-3, p. 8)
5. The compensation system for HOPE Representatives was called the "Binary Pay System," which provided that, "The only requirement to become commissionable in HOPE is to sponsor two representatives who each have a minimum of 1 WPU (wholesale product unit)." (Cx-3, p. 18) Additional sponsorships by these two representatives were termed "Spillover," and these new people became part of the original representative's organization for purposes of earning commissions. (Cx-3, p. 19) As originally proposed, each person that a representative sponsored was expected to purchase one WPU, consisting of some combination of the fuel cards, and a case (12/6 oz. bottles) of "HOPE fuel enhancer." (Cx-3, p. 20) The cost was $195 for option "A", and $295 for option "B." The "fuel enhancer" was described as something that would reduce harmful emissions, increase performance, and reduce maintenance costs. (Cx-3, p. 17)
6. For a HOPE representative to receive a commission under the original plan, two conditions had to be met. First, his/her organization, also referred to as his "downline," had to generate 15 sales of WPUs. Second, at least of those sales had to be on each side of the downline, i.e., if the original representative sponsored Jones and Smith, at least of the 15 sales had to come from Jones and Jones' downline, and at least of the 15 sales had to come from Smith and Smith's downline. If these conditions were met, the representative would receive a $200 commission check. (Cx-3, p. 20). When sales reached 60, with the rule still applicable, the representative would receive a $600 commission check. This would complete what was called "Cycle 1." (Tr.260-61) At that time, a representative could begin a new cycle by purchasing another WPU, termed "Commission Maintenance Reentry (CMR)." The advertisement described four "Cycles," each requiring 60 sales, generating a total of $5,500 in commissions. (Cx-3, pp. 21-25; Rx-1)
7. At some time in May/June 1997, probably because of the inability of anyone to comprehend the "four cycle" system, and the fact that the fourth cycle was unattainable due to the number of sales and people required, Respondents modified the system to a "one cycle" system. Commissions are still based on sales made by persons in the representative's downline, and the rule still applies. (Tr. 110-12, 160-62, 262-63; Rx-2)
8. To become a HOPE representative, a person must fill out a printed form titled, "Independent Representative Application & Agreement." (Cx-6; Rx-1) Under the original program, this form required a $50 "Application Deposit," and also contained several boxes for the applicant to check whether he/she wished to pay $64.95 for the "optional Executive Representative Kit," and whether he/she wished to purchase a WPU. The form also stated, "My sponsor has explained to me that I am not required to make a purchase in order to become a HOPE Representative . . .." When the program was modified in May/June 1997, the application form was also changed slightly. There is no longer a $50 "Application Deposit." For $59.95 an applicant now receives an "optional Executive Starter Kit," and can also receive "optional Representative Certification Training" for $40. WPUs are now called RPUs (Retail Product Units). The form still contains the statement, "My sponsor has explained to me that I am not required to make a purchase or a sale in order to become a HOPE Representative." (Rx-2) In order for a HOPE Representative to make any money (commissions) under either plan, however, a sufficient number of people below him/her in his/her downline had to purchase WPUs, or later RPUs. As one witness who had been a HOPE Representative testified, he would not let anyone into his downline unless that person purchased a WPU. (Tr. 105, 125-28) Another witness estimated that 85 per cent of the people in his downline had purchased a WPU. (Tr. 172)
9. Applications, and whatever fees accompanied them, were mailed to HOPE at 4360 Beltway Place, #200, Arlington, TX 76018. (Tr. 155; Cx-6; Rx-1; Rx-2) HOPE began accepting applications after the program was officially "launched" by a public meeting of interested participants in Dallas, Texas on March 8, 1997. Several thousand applications were received, most accompanied by money. (Tr. 251, 273)
10. The prepaid fuel cards were to be available only to people who became HOPE representatives. They were not intended to be resold, but were the primary incentive for people to join the program as representatives, because the cards were to be "re-charged," or additional cards were to be available at a discount, once certain levels of sales of WPUs were attained. (Tr. 106, 133-37, 165, 266; Answer, ¶8; Rx-2)
11. HOPE Representatives were expected to "work their downline," and were trained in how to help the two people they first sponsored recruit and train additional people. This would include holding motivational meetings, talking regularly to downline people, and making telephone calls. (Tr. 106, 152, 274-75; 341-42) This is an essential aspect of network marketing, or multi-level marketing, because the only way any individual can make money is for the people in his/her downline to continue to make sales. A HOPE Representative could not create more than two legs on his downline, but he could continue to recruit new people and place them under one of the other representatives in his downline, thereby helping both himself and others in his organization to earn commissions. (Tr. 152, 274-75)
12. The lure of HOPE's program is the ability to make income in two ways: (1) the availability, on a continuing basis, of the discounted fuel cards, and (2) commissions on sales to others of the opportunity to obtain these fuel cards. The enticement of the fuel cards was referred to by some as the "sizzle" in this enterprise. (Tr. 134, 165) Although the original "Application & Agreement" contained a provision that required a representative to re-sell 70 per cent of the fuel enhancer, it was the cards, not the fuel enhancer, that attracted new applicants. (Cx-2; Tr. 108, 131) There was no persuasive evidence presented that anyone ever sold, or attempted to sell, the fuel enhancer separate from the WPUs. No commissions were generated simply by sales of fuel enhancer, and HOPE, Inc. made no money from any re-sale of fuel enhancer. (Tr. 276-81, 338-41)
13. HOPE's intention was to have a computer system that would maintain a record of how many sales were made in each representative's organization (downline). This system was to be used for issuing commission checks, and for printing "genealogy" reports for representatives to use in tracking activity in their downlines. (Tr. 143, 163, 175-76; Cx-3, p. 15) For reasons that are not clear, this system did not work as planned, and representatives were unable to keep accurate track of what, or how many, people were in their downlines, and how many sales were made by all these people. (Tr. 121-22, 143, 163, 204)
The False Representation Allegations
(a) The consumer who invests in the "Binary Pay System" is not participating in a lottery.
14. This is not separate from the lottery allegation itself. Unless one can infer that any sales pitch includes a representation that it is not illegal, which I do not, I find that Respondent's advertisements do not make this representation.
(b) The consumer who invests in the "Binary Pay System" will be compensated solely on the sale of products, not on the recruitment of people.
15. This is more in the nature of argument by Complainant, pertinent to the lottery allegation. However, although I do not find this to be a representation made by Respondent's original advertisements, it is specifically made in Respondent's modified program. "All bonuses are paid solely on the sale of products, not on the recruitment of people." (Rx-2, brochure, p. 7)
16. This representation is false because commissions are still based on recruitment of new people. There is no evidence of any "sales," apart from signing up more people to become HOPE representatives. The attraction is still the fuel cards, and the cards are available only to representatives. (Rx-2, brochure, p. 5) The new advertisement also says, "The sponsor of a new representative who purchases a case of Fuel Enhancer (R.P.U.A.) receives $25 in prepaid fuel!" (Rx-2, brochure, p. 8)
17. This representation is material because it makes the prospect of earning money sound much easier than it actually is.
(c) The consumer can control his/her downline distributors so as to ensure participation and payout.
18. Again, this is part of Complainant's argument on the lottery allegation, i.e., that the element of chance is present because consumers cannot control their downline distributors. I do not find this to be a specific representation that is made in Respondent's advertisements, however.
(d) The consumer can recruit enough downline distributors to achieve daily payouts of: $605 (Cycle 1); $1,150 (Cycle 2); $3,020 (Cycle 3); and $4,330 (Cycle 4).
19. An analysis of this allegation requires comparison of HOPE's original advertisement (Cx-3, pp. 20-25), with the program as modified after June 1997 (Rx-2). The original uses the dollar figures quoted above, but the advertisement is not at all clear as to how the four cycles worked, and none of the witnesses was able to explain it. The original advertisement does, however, make several references that strongly imply substantial income awaits those who become HOPE representatives. Cx-2, at page 2, speaks of an "exciting new way to make a living, or just some part time income . . .." At page 6, Cx-2 lists the following as reasons to apply: "Financial Dreams and Goals; Savings; Major Purchases; Education Funds; Retirement; and Travel." Page 7 of Cx-2 says, "Easy Industry to Enter and Become Successful." Page 15 of Cx-2 states that the HOPE System is "Easily Duplicatable for Maximum Earning Potential." Even though I find no reference to "daily payouts," I find that the overall impression created by the advertisement is that large amounts of money will easily be earned, and that this is the essence of the alleged misrepresentation.
20. Under the new program, the four cycles are replaced by one "Super Cycle," which is easier to understand, but conveys the same message. (Rx-2) This tells the applicant that he/she will earn $600, plus $25 in prepaid fuel, for every 60 "sales" made by his organization. It also states that there is no limit to how many times each day one can complete the cycle, and that there is "no maximum daily payout." The new advertisement lists the same attainable financial goals as did the original. (Rx-2, brochure, p. 2)
21. I find that representation (d), i.e., that a consumer (HOPE Representative) will be able to recruit enough downline distributors to earn substantial amounts of money, is made in both the original, and the new, HOPE advertisements.
22. This representation is false because substantial income under either system would be extremely difficult to attain. Witnesses testified that the four-cycle system was discarded because the fourth cycle, with its large income numbers, was "unattainable just because of the sheer numbers," (Tr. 111), and that "once you get into cycle 3 and 4, you are talking about an astronomical amount of sales." (Tr. 160). The key is that "sales" have nothing to do with re-selling fuel enhancer, or any other product, to the public. A "sale" means signing up another applicant to become a HOPE representative/distributor, who also purchases a WPU or RPU. Even under the modified program, every "sale" requires a new customer, and the numbers required to earn significant income, especially with the - rule still in effect (see Findings 6 and 7), would be very large.(4)
23. This representation is material, because belief in the opportunity to earn substantial income makes it more likely that people will apply to become HOPE representatives.
The Lottery Allegation - Contentions of the Parties
A lottery is defined as a "scheme for the distribution of prizes or things of value by lot or chance among persons who have paid or agreed to pay a valuable consideration for the chance to obtain a prize." Peek v. United States, 61 F.2d 973, 974 (5th Cir. 1932). Complainant argues that the so-called "Binary Pay System" constitutes a lottery, and that the three elements - prize, consideration, and chance - are established by the evidence. According to Complainant, the prize is the large amount of money in commissions, and in savings on the cost of gasoline, potentially available to those who sign up to become HOPE Representatives; the consideration is the large amount of time and effort a representative must expend in holding meetings, recruiting people, and continually training and coaching his/her downline; and the element of chance is present because any representative's success in earning commissions is dependent upon a sales system over which he/she has little or no control.
Respondent argues that the elements of consideration and chance are both missing from the program offered by HOPE. Respondent directs his argument to the modified program, and also argues that the original program should be beyond the scope of this proceeding, because it was discontinued before he became aware of the Complaint. As to the issue of consideration, Respondent points out that all the HOPE application forms specifically state, in more than one place, that no purchase is necessary to become a HOPE Representative, thereby eligible to earn commissions. Further, Respondent argues that after the plan was modified in May/June 1997, there are no fees at all that an applicant must pay to become a representative. Respondent contends that consideration must take the form of money, or something of value, that is paid by an individual, as opposed to time and effort expended. As to the element of chance, Respondent argues that any sales activity necessarily includes some degree of chance, but that the financial success achieved by a HOPE Representative depends primarily on the amount of work and skill put forth to develop an effective sales organization.
CONCLUSIONS OF LAW
1. The elements of a lottery are prize, chance and consideration. FCC v. American Broadcasting Co., 347 U.S. 284, 290 (1954); Horner v. United States, 147 U.S. 449, 458-60 (1893); James R. Phipps, P.S. Docket No. 29/35 (P.S.D. March 24, 1994); Great American Giveaway, et al, P.S. Docket No. 36/102 (P.S.D. Feb. 5, 1993).
2. Respondent's "Binary Pay System" is not unlike many other multi-level marketing programs that have been held to violate the lottery provision of 39 U.S.C. §3005. Ron Cooper, P.S. Docket No. 35/112 (P.S.D. Feb. 7, 1992); Unimax, Inc., P.S. Docket No. 28/77 (P.S.D. March 3, 1989); N.E.S.T., Inc., P.S. Docket No. 14/89 (P.S.D. Aug. 7, 1984); Middle Class American, Inc., P.S. Docket No. 16/65 (P.S.D. March 26, 1984); Collegedale Diversified Enterprises, Inc., P.S. Docket No. 14/29 (P.S.D. Oct. 25, 1983).
3. The prize element is clearly present and is not disputed. The consideration element is present in Respondent's original program in the form of the $50 application fee. (Finding 8). This type of fee has regularly been held to constitute consideration. Great American Giveaway, et al, at 5 (P.S.D. Feb. 5, 1993); Ron Cooper, at 5 (P.S.D. Feb. 7, 1992); The Processing Center, Inc., P.S. Docket No. 34/63, at 5 (P.S.D. Jan. 27, 1992); Conte & Co., Inc., P.S. Docket No. 29/131, at 5 (P.S.D. Sep. 29, 1988). Under the modified program, as well as under the original program, the time and effort expended by HOPE representatives also constitutes consideration. (Finding 11). Despite Respondent's protestations to the contrary, the controlling law is well-settled that expenditure of time and effort alone can constitute consideration for determining whether a particular enterprise is a lottery under §3005. FCC v. American Broadcasting Co., supra ; Great American Giveaway, et al, supra at 6; Unimax, Inc., supra at 11; N.E.S.T., Inc., supra at 11; Collegedale Diversified Enterprises, Inc., supra at 5.
4. Likewise, the law is well-settled that the element of chance is present if the individual participant is dependent upon the actions of others not under his/her control to obtain a prize. Public Clearing House v. Coyne, 194 U.S. 497, 515 (1904); James R. Phipps, supra at 6; Unimax, Inc., supra at 13-14; N.E.S.T., Inc., supra at 13; Middle Class American, Inc., supra at 7-8; Collegedale Diversified Enterprises, Inc., supra at 8-9. In this case, even though an individual could improve his/her chances by "working his downline," the evidence shows that there was lack of information about who was even part of one's downline, and little control over whether the requisite number of sales were made. (Finding 13).
5. Respondent's argument that the views of consideration and chance expressed above are unfair to the network marketing industry is unpersuasive. The flaw in HOPE's program is that it has no useful "product" to sell. All the emphasis was on persuading more people to send in applications, with the purchase of WPUs, to become representatives, so that they, in turn, could recruit more people and obtain more discounted fuel cards. As noted earlier (Findings 10 and 16), the fuel cards were not a product for sale to the general public. The only actual "product" was the fuel enhancer, which seems little more than an afterthought, and played no significant part in enticing people to submit applications which they hoped would produce income.(5) See James R. Phipps, supra at 6. Because the only way any individual can make money is for more people to keep submitting applications, with the purchase of WPUs (now RPUs), the source of commissions is soon exhausted. The following statement from the Coyne case is apposite:
6. Respondent's argument that only HOPE's modified program should be the subject of this case is without merit. Much of his argument is based on a premise that the new plan does not constitute a lottery. As discussed above, both the old plan and the new plan include all the elements of a lottery, and both should be prohibited by any cease and desist order that may ultimately be issued. Also, modification or discontinuance of a particular promotion does not render a proceeding under 39 U.S.C. §3005 moot. Arthur Mourad, P.S. Docket No. 37/177 at 5 (P.S.D. June 28, 1993); Paul W. Schuette, P.S. Docket No. 29/117 at 9 (P.S.D. March 16, 1989); CM/NA, P.S. Docket No. 20/33 at 9-10 (P.S.D. August 29, 1986); Electronic Development Lab, P.S. Docket No. 18/157 at 5-6 (P.S.D. Sep. 6, 1985). Respondent's argument in his Reply Brief, that there is no requirement under the new plan to sponsor new sales representatives, or for any downline representatives to make purchases, is not supported by the record.
7. Respondent argues that because HOPE, Inc. is listed in the Complaint only as a d/b/a of Jeffrey Walker, rather than as a separately named Respondent, no Order that might be issued can be binding against the Corporation. If this is an argument that other people, acting in the name of HOPE, Inc., should be permitted to continue a lottery promotion simply because the
Complaint was not drafted as precisely as it might have been, the argument is contrary to the clear purpose of 39 U.S.C. §3005, and is without merit. See Sergio & Spiegel, P.S. Docket No. 37/105 at 5-7 (P.S.D. March 12, 1993). This would surely elevate form over substance. See Claud Koch, P.S. Docket No. 22/140 at 9 (P.S.D. November 6, 1987). The Complaint adequately put HOPE, Inc., and its President, Mr. Walker, on notice of the charges, and nothing was presented that suggests they were hindered in presenting their defenses. Health Guard, P.S. Docket No. 6/114 at 2-3 (P.S.D. June 27, 1979); Everywoman's Water Pill, P.S. Docket No. 6/113 at 4-5 (P.S.D. May 31, 1979).
8. Broad cease and desist orders are in keeping with the purpose of 39 U.S.C. §3005, and have consistently been upheld. Finderhood, Inc., P.S. Docket No. 34/102 at 22-24 (P.S.D. March 20, 1992), citing several Federal Trade Commission cases; e.g., Federal Trade Commission v. Mandel Brothers, Inc., 359 U.S. 385, 392-93 (1959); see also American Genealogies, Inc., 717 F. Supp. 895, 898-99 (D.D.C. 1989).
9. Respondents' solicitations must be considered as a whole and their meaning determined in light of the probable impact on the mind of the ordinary recipients to whom they are directed. Donaldson v. Read Magazine, 333 U.S. 178 (1948); Peak Laboratories v. U.S. Postal Service, 556 F.2d 1387 (5th Cir. 1977); Allen Glazer, P.S. Docket No. 40/59 (P.S.D. January 27, 1994); Charles Smith, P.S. Docket No. 37/180 at 14 (P.S.D. January 31, 1994); Building Trades Association, P.S. Docket No. 37/88 at 6 (P.S.D. August 2, 1993).
10. Representations may be false, within the meaning of §3005, even if many of the statements in a solicitation are literally true. Borg-Johnson Electronics, Inc. v. Christenberry, 169 F. Supp. 746, 750-51 (S.D.N.Y. 1959); Joseph N. Wilkinson, P.S. Docket No. 38/183 (I.D. June 2, 1992). "This section forbids representations that are false or artfully designed to mislead." Dynaquest Corp. v. U.S. Postal Service, 12 F.3d 1144, 1146 (D.C. Cir. 1994).
11. The solicitations themselves are the best evidence as to what representations are made, and the Administrative Law Judge is qualified to make that determination. Directory Publishing Services, Inc. v. Runyon, 851 F. Supp. 484, 488 (D.D.C. 1994); Erica Lynn Kortje, P.S. Docket No. 40/176 at 3 (P.S.D. September 27, 1995); Directory Publishing Services, P.S. Docket No. 38/122 at 6 (P.S.D. February 28, 1994); Allen Glazer, supra at 4. The use of lay or expert testimony is not required, Dynaquest, supra at 1149; Scott P. Cullinane, P.S. Docket No. 39/32 at 7 (P.S.D. November 7, 1994), but testimony from consumer witnesses as to the impression a solicitation made upon them may properly be considered, as it was in this case. Joseph N. Wilkinson, supra at 13.
12. A representation is material when it is calculated to cause the reader to do what the representor wants the reader to do, or causes the reader to do other than he or she would have done had the truth been told. F.T.C. v. Colgate-Palmolive Co., 380 U.S. 374,387 (1965); Chaachou v. American Central Insurance Co., 241 F.2d 889, 893 (5th Cir. 1957); Charles Smith, P.S. Docket No. 37/180 at 30 (P.S.D. January 31, 1994); Directory Publishing Services, P.S. Docket No. 38/122 at 16 (P.S.D. February 28, 1994).
13. Complainant has established its case by a preponderance of the reliable and probative evidence of record. S.E.C. v. Savoy Industries, Inc., 587 F.2d 1149, 1168 (D.C. Cir. 1978).
Respondent's multi-level marketing program constitutes a lottery within the meaning of 39 U.S.C. §3005, and also makes the false representations alleged in Paragraph 20, subparagraphs (b) and (d), of the Complaint. The attached proposed Lottery Order and Cease and Desist Order should be issued.
Bruce R. Houston
Chief Administrative Law Judge
Citations to the hearing transcript are "Tr. _." Citations to Complainant's exhibits are "Cx-" and to Respondent's exhibits are "Rx-."
In his Reply Brief, Respondent describes the new compensation system somewhat differently, but in a way not borne out by the evidence of record.
Advertisements for the modified plan (Rx-2) refer to something called "Wildfire," or "Wildpack," which apparently is a type of telephone service, but no evidence describes it any further.
|Jeffrey A. Babener
Babener & Associates
121 SW Morrison, Suite 1020
Portland, OR 97204
|Jeffrey A. Babener, the principal attorney in the Portland, Oregon law firm of Babener & Associates, represents many of the leading direct selling companies in the United States and abroad.|
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