In the Matter of the Complaint Against
N. E. S. T., INC. NEST EGG SOCIETY TODAY
Grant, Quentin E.
APPEARANCE FOR COMPLAINANT:
APPEARANCE FOR RESPONDENT:
This proceeding commenced on September 29, 1982, with the filing of a Complaint which alleged that Respondent was violating 39 U.S.C. § 3005 by conducting a scheme or device for obtaining money or property through the mails by means of false representations and also by conducting a lottery or scheme for distribution of money by chance.
The Complaint contained three counts. Counts One and Two alleged that Respondent's scheme involved the use of a brochure distributed directly by Respondent, and indirectly through its participating members, containing false representations that "(a) Persons who become members of Nest Egg Society Today and participate in the program are likely to earn as much as $98,415 within a few months" and "(b) Each new member is likely to be able to recruit three new members." Count Three of the Complaint alleged, in substance, that Respondent's program as evidence by its brochure constituted the conduct of a lottery or scheme for the distribution of money by chance through the mails.
A hearing was held on November 18, 1982. No testimony was taken at that time. However, the parties stipulated the admission into evidence of Complainant's Ex. 1, a piece of promotional literature in the form of a brochure in use by Respondent at the time the original Complaint was filed but, according to Respondent, no longer in use on the date of the hearing. Respondent, at the hearing, admitted the allegations of Counts One and Two of the original Complaint. The Respondent continued its denial of the lottery count and the parties agreed that only the lottery issue remained for consideration under the original Complaint.
At the hearing the parties expressed the understanding that Respondent would submit to USPS for review and opinion as to violation of the postal lottery law proposed revisions in its promotional materials and that in the event the opinion should be adverse to Respondent Respondent would probably appeal therefrom pursuant to 39 U.S.C. § 3001, such appeal to be consolidated with the original proceeding. The undersigned announced a time frame for submission and review of Respondent's revised materials. Respondent made timely submission thereof to USPS. On March 21 Complainant's Counsel advised Counsel for Respondent that review of the revised materials (by that date already in use by Respondent) disclosed that the program as revised was a lottery and, therefore, violated 30 U.S.C. § 3005.
Complainant, on April 12, 1983, filed an Amended Complaint containing false representation and lottery charges as to Respondent's original program and the program as revised. Respondent's answer to the Amended Complaint was essentially a general denial of the allegations thereof accompanied by 28 paragraphs denominated affirmative defenses.
A further hearing was held on May 2, 1983. William Joseph Isaacs, an Assistant Attorney General for the State of South Carolina, testified for Complainant. Thomas J. Atkin, a founding director and principal of Respondent testified on its behalf.
As announced by the undersigned at the opening of the hearing, Respondent's Counsel stated at a prehearing conference that Respondent admits the allegations of Counts I and II of the original Complaint with the respect to the advertisement attached thereto (CX-1).
Both parties have filed proposed findings of fact and conclusions of law all of which have been considered. To the extent indicated they have been adopted. Otherwise they have been rejected as irrelevant, immaterial, or not supported by the evidence.
Complainant takes the position that all three of Respondent's plans incorporate a lottery or scheme for the distribution of money by lottery, chance, or drawing in violation of 39 U.S.C. § 3005.
The necessary elements of a lottery are the furnishing of consideration, the offering of a prize, and the distribution of the prize by chance. Brooklyn Daily Eagle v. Voorhies, 181 F. 579, 581 (1910); Tenpen Sales Corporation, P.O.D. Docket No. 2/35 (May 10, 1961).
Respondent's defense concentrates on its Plan No. 3 which it says is devoid of the representations alleged in the Amended Complaint and any of the three elements required to find a lottery.
Respondent says that the brochure for Plan 3 contains no promise of a substantial monetary return for participation in NEST and no assurance of ease in recruitment of new members. Respondent asserts that the main thrust of the Plan 3 brochure is the bona fide offer of products and services of a valuable nature.
As to the lottery charge, Respondent argues that Plan 3 involves no consideration in that it eliminates the requirement that participants furnish any money or thing of value to Respondent. It says under Plan 3 a person is not required to pay a monetary fee of any amount or expend effort so substantial as to constitute consideration in order to participate in NEST. Respondent says that its "free entry option" puts its Plan 3 on the same legal footing as the Readers Digest and Publishers Clearing House sweepstakes, which hold out the lure of very large prizes without requiring any purchase for eligibility (and which according to Complainant's brief do not violate 39 U.S.C. § 3005 as being lotteries).
The element of chance is also absent under Plan 3, so Respondent argues. It bases this argument on assertions that participants now have an attractive product to sell and that the commissions earned are dependent on the development and application of skill. Respondent further argues relative to the element of chance, and distinguishing its promotion from that involved in Zebelman v. United States, 339 F.2d 484 (10th Cir. 1964), that participants in Plan 3 influence subsequent events (progress through 9 levels) because there is identification of participants between levels and there is means of communication between them including motivational and instructional contact between levels. On the matter of influence by higher levels on lower levels Respondent analogizes its marketing program to the Amway and Shaklee multi-level marketing operations. Respondent has not placed in evidence details of the operations of those operations.
Respondent argues that the lottery element of prize is absent from Plan 3 because moneys earned by participants are the result of exercise of a skill, analogous to the override commission commonly earned by sales managers in a multitude of American enterprises. Respondent also contends that the element of prize is also negated by the presence of a product in Plans 2 and 3 and the other modifications introduced in those plans.
Complainant contends that there are significant differences among Respondent's Plans but contends that each includes a lottery.
Complainant notes that Plan 2 does not expressly hold out the lure of making up to $98,415 in just 4 months but says that the "management bonus" described in the Plan 2 brochure is in fact just as much a prize the winning of which depends on chance (the uncontrolled participation of many other members) as the $98,415 in Plan 1. Complainant says the consideration is found in fees and dues required by Plans 1 and 2 for the opportunity to make "up to $98,415" (Plan 1) or the "Management Bonuses" (Plan 2).
Complainant says that the option available under Plan 3 to become a distributor eligible to earn "Management Bonuses" without payment of a fee is an inadequate attempt by NEST to eliminate the element of consideration. Complainant asserts that NEST's Plan 3 is only superficially similar to the "free entry option" employed by Readers Digest and others in sweepstakes legally conducted by mail as promotional adjuncts to the sale of their products. Complainant has not placed in the record evidence showing how these sweepstakes promotions actually work but since both parties make reference to such promotions which have been conducted for so many years and on such a vast scale that the details of their operations are generally known I take discretionary judicial notice thereof.
A person may participate fully in the Readers Digest Sweepstakes by simply sending in his entry in the envelope marked "NO" which is provided for persons who do not wish to purchase one of the Readers Digest products advertised in accompanying literature. Nothing more is required. There is nothing more an entrant can do to enhance his chances of winning a sweepstakes prize.
Complainant argues that "no fee" participation in NEST's Plan 3 is completely different in that although no monetary consideration is paid directly to NEST or to other NEST participants there is consideration to NEST in the form of substantial time and effort.
Complainant says it has found no case in which time and effort comparable to that involved in Plan 3 have been examined by a Court as possible consideration in a lottery case. However, Complainant says that in Garden City Chamber of Commerce v. Wagner, 100 F. Supp. 769 (E.D.N.Y. 1951) the Court indicated that although the authorities at that time indicated that consideration requisite to a lottery is a "contribution in kind to the fund or property to be distributed, evidence of 'substantial effort,' had it been offered, might have supported a finding of consideration."
Complainant says that the time and effort required of a NEST distributor to have any realistic hope of receiving management bonuses goes far beyond the acts held in a number of decisions to be less than the consideration required to support a lottery charge (American Broadcasting Co. v. U.S., 110 F. Supp. 374 (S.D.N.Y. 1953) aff'd sub nom F.C.C. v. American Broadcasting Co., 347 U.S. 284 (1954) (tuning in a radio program); Caples v. U.S., 243 F.2d 232 (D.C. Cir. 1957) (picking up bingo-like cards from participating merchants)); Garden City Chamber of Commerce v. Wagner, supra (looking in shop windows of participating merchants to see if winning number was posted).
Complainant points to the following testimony of Respondent's principal and director, Thomas J. Atkin, as portraying the substantial effort required of a distributor to enhance his prospects of realizing significant earnings:
Mr. Atkin also gave the following testimony bearing on the effort required to be successful in earning "management bonuses":
* * *
The necessary elements of a "lottery" are the furnishing of consideration, the offering of a prize, and the distribution of the prize by chance. Brooklyn Daily Eagle v. Voorhies, 181 F. 579, 581 (1910); Tenpen Sales Corporation, P.O.D. Docket No. 2/35 (May 10, 1961). A simple chain letter has been held to constitute a lottery. United States v. 21 Items of Mail, Nos. 79-114M, 79-115M, 79-123M, 79-124M (W.D. Pa. filed Oct. 14, 1980), aff'd mem., 649 F.2d 861 (3rd Cir. 1981).
Respondent's Plans 1 and 2 possess the three elements of a lottery. New members must pay $15.00 (Plan 1) or $16.50 (Plan 2) to participate in the pyramid scheme common to both programs i.e., the 9-level membership recruitment program. These payments constitute consideration for the possibility of receiving substantial amounts of money for members reaching the No. 1 position. The fact that under both programs members receive additional value in the form of discount purchase opportunities, etc. does not alter this conclusion. Horner v. United States, 147 U.S. 449 (1892); Tenpen Sales Corporation, supra; The Crystal Ball Club, P.S. Docket No. 14/65 (Init. Dec. Oct. 21, 1982); The Gold Mine Society, et al., P.S. Docket No. 16/2,16/3, 16/5, 16/9 (Init. Dec. May 31, 1983).
The amount of money a member receives is dependent to some extent on the amount of time and energy he expends on selling, and helping other members to sell, memberships. However, his arrival in the No. 1 position and the amount of money he will receive on reaching that position are largely dependent on contingencies beyond his control, i.e., the success of other members in selling new memberships and influencing new members to participate fully in the pyramid. These contingencies clearly constitute the element of chance. See United States v. 21 Items of Mail, supra; New v. Tribond Sales Corporation, 19 F.2d 671 at 674 (D.C. Cir. 1927); Zebelman v. United States, 339 F.2d 484 (10th Cir. 1964).
The element of prize exists in the receipt of money by persons in the No. 1 position whether sent directly by new members or distributed by NEST.
The greater emphasis in the Plan 2 brochure on discount purchase opportunities, calling the scheme a marketing plan and multi-level marketing, and the other changes listed in Finding of Fact No. 8, above, do not alter the essential character of the pyramid part of the scheme. It remains a lottery.
Plan 3 is substantially different from Plans 1 and 2 in that a person may become a NEST distributor and participate fully in the 9-level program and its "management bonuses" without payment of any monetary consideration to NEST or other participants.
The question whether consideration may be found in a substantial amount of time and effort required of a participant in an alleged lottery appears not to have been finally disposed of by the federal courts. In the federal cases cited by the parties the courts refrained from holding that anything short of a monetary or tangible property contribution could never constitute valuable consideration in the context of a lottery, gift enterprise or similar scheme. The Supreme Court in F.C.C. v. American Broad casting Company, supra, in a footnote (No. 15 at pages 294, 295) cited without explicit criticism or other indication of disapproval the Postal Bulletin of June 4, 1953 1/ which, following
Rulings on Lotteries, Gift Enterprises, Etc.
In the Postal Bulletin of February 13, 1947, the following statement was made of the position of the Office of the Solicitor respecting the element of consideration in a lottery: the Garden City Chamber of Commerce v. Wagner case, and the lower court decision in F.C.C. v. A.B.C. case, both supra, continued its instructions to postmasters that "substantial expenditure of time and effort" is consideration in a lottery scheme but narrowed such instructions to exclude the specific minimal time and effort involved in those cases.
There have been two recent decisions in the Federal courts dealing with the question of consideration in a lottery: Garden City Chamber of Commerce v. Wagner, 100 Fed. Supp. 769, wherein it was held that a requirement that participant visit a number of stores to determine if his number is posted in one of the store windows, thereby entitling him to a prize, does not constitute a consideration for a prize, and that such a scheme is therefore not a lottery; American Broadcasting Co., Inc., et al. v. Federal Communications Commission, 110 Fed. Supp. 374, dealing principally with requirements of listening to the radio or watching television programs.
This office will continue to hold that the element of consideration is present in a prize scheme when a substantial expenditure of time and effort is involved. However, in view of the court decisions referred to, this office must reverse its rulings which have held consideration to be present in the following and similar situations: where the sole requirement for participation is registration at a store and, in addition, attendance at a drawing or a return to the store to learn if one's name was drawn, visiting a number of stores, or a number of different locations in a store, to ascertain whether or not one's name or number has been posted; witnessing a demonstration of an appliance or taking a demonstration ride in an automobile, etc.
Postmasters should therefore exercise caution in applying previous rulings of this office in prize plans involving consideration only in "time and effort" expended. If there is doubt with respect to any of these questions, the matter should be submitted to the Solicitor so that a definite ruling may be made thereon.
It appears to me that the federal courts to this date have left the door open to finding time and effort to be consideration in an appropriate case.
What time and effort are required of a NEST distributor? Mere free enrollment does not entitle him to any "earnings" whatsoever. In order to earn the "management bonus" he must recruit new members setting in motion a chain of membership recruitment, which if all works well, will move through nine levels at which point he will start to earn the management bonus but, then, only if such new members elect to pay for membership.
The Plan 3 brochure tells prospective members under the heading "Management Bonuses" that such bonuses will be received once a distributor has achieved a level of success Membership Coordinator or No. 1 position through "training, managing, and motivating a sales organization" and that "this is an earned position based on effort and ability." Further, the prospective distributor is told "Becoming a Membership Coordinator requires that you duplicate your effort and knowledge through nine sponsorship levels and accept responsibility for assisting Distributors under your supervision. For your efforts, you earn $5.00 on each membership they sell."
Throughout the Plan 3 brochure "effort" is stressed repeatedly. Distributorship is even called a "part-time endeavor."
If time and effort can ever constitute consideration in a lottery case, and I believe they can, their magnitude in this case is clearly sufficient to do so.
INSTRUCTIONS OF THE SOLICITOR
|Jeffrey A. Babener
Babener & Associates
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