Judge imposes settlement of fundraiser Eberle’s libel suit, ANIMAL PEOPLE corrects error made by a source and two items never in the newspaper nor on our web site

From ANIMAL PEOPLE,  June 2003:

FAIRFAX,  Virginia–Imposing the
“Correction & Statement of Regret” published
directly below,  Fairfax County Circuit Judge
Stanley Paul Klein on May 29,  2003 ended a
lawsuit brought against ANIMAL PEOPLE in July
2002 by direct mail fundraiser Bruce Eberle and
his firm Fund Raising Strategies.
Obtaining several specific corrections
and clarifications that ANIMAL PEOPLE had already
made,  to the extent that available information
allowed,  Eberle and FRS received no retractions
of main coverage,  no damages or costs,  no
admission of their allegations of libel and
tortious interference in business relationships,
and–in tacit recognition that Eberle and one of
his major clients contributed to whatever errors
were made through their own inaccurate
remarks–no apology.

By way of future conditions,  ANIMAL
PEOPLE agreed only to obey the same laws of the
state of Virginia that apply at all times to all
news media.
None of the corrections involved material
published in exposes focused on Eberle and Fund
Raising Strategies,  the longest of which were
“Would you buy an appeal from fundraiser Bruce
Eberle?” and “Mississippi sanctuarian tries to
quit ‘sharecropping’ for fundraiser,”  published
in September and October 2000,  accessible at
<www.animalpeoplenews.org>.
Each correction of published material
involved an incidental mention in items focused
on other topics.  The corrections pertain to
fewer than 160 words,  of more than 17,000 words
about Eberle appearing since 2000 in ANIMAL
PEOPLE,  The Watchdog Report on Animal
Protection Charities,  and miscellaneous appeals
and promotional items.
In statistical terms,  no fault was found
in 99.2% of the total volume of ANIMAL PEOPLE
coverage mentioning Eberle and FRS either
directly or implicitly.
Nothing specifically de-scribed under
points #1 and #3 in the “Correction & Statement
of Regret” ever appeared in any regular edition
of ANIMAL PEOPLE,  or was ever posted to
<www.animalpeoplenews.org>.  Point #3 may,
however,  be interpreted as having implied
reference to two sentences toward the end of the
May 2003 ANIMAL PEOPLE editorial.
“Our statements” cited in enumerated
point #2 were statements quoted and paraphrased
from Wildlife Waystation founder Martine Colette,
to whom they were attributed.  Although they were
“our statements” in the legal sense that we
published them in good faith,  fully attributed
to Colette,  in no way were her remarks ever
represented to be the position or perspective of
ANIMAL PEOPLE.

Bogus photos

Further to point #1,  the 2001 and 2002
editions of the ANIMAL PEOPLE Watchdog Report on
101 Animal Protection Charities noted that John
Ashcroft,  now the U.S. Attorney General,  ended
a fundraising deal with Eberle in 1999,
according to Deirdre Shes-green of the St. Louis
Post-Dispatch,  “after Associated Press inquired
about accusations that Eberle used phony
prisoner-of-war sightings to solicit money from
veterans for another client.  Eberle’s
solicitations,”  Shesgreen wrote,  “came to light
in 1992 during hearings held by the Senate Select
Committee on POW-MIA Affairs.”
In condensing previously published
material about that episode from a variety of
sources,  ANIMAL PEOPLE erroneously identified
the “phony POW sightings” as “involving staged
photos taken on the grounds of a notorious
wildlife dealer in Thailand.”
ANIMAL PEOPLE independently identified
this as a possible error and conditionally
corrected it,  pending receipt of further
information,  in December 2002.
Eberle stated under oath during
deposition in May 2003 that he had nothing to do
with these photos.  They were used by his client,
the late Colonel Jack Bailey,  after Eberle no
longer represented him.
Though Eberle refused to provide copies
of the mailings he produced for Bailey so that we
could see for ourselves if the staged photos were
used or not,  we have accepted Eberle’s sworn
statement.
“I understand that his entire direct mail
program shut down after we terminated our
relationship,”  Eberle told ANIMAL PEOPLE by
e-mail on August 7,  2000.
Eberle represented Bailey and his now
defunct charity Oper-ation Rescue from 1983 until
1989.
Some of Eberle’s 40 mailings over three
years on behalf of Bailey were called “clear
examples of misleading solicitations” in the 1992
final report of the U.S. Senate Select Committee
on POW-MIA Affairs,”  and were denounced in
public statements by Senators John McCain
(R-Arizona) and John Kerry (D-Pennsylvania).
Bailey  accused Eberle “of milking the
charity for profits,”  Los Angeles Times staff
writer Scott Harris reported in August 1991.
Stated the Senate Select Committee on
POW-MIA Affairs final report,  “Operation Rescue,
Inc. reported on federal tax forms that during
the period 1985 through 1990 Šfundraising
expenses constituted 88.8 percent of
contributions.”
As in the libel suit against ANIMAL
PEOPLE concerning the cost of fundraising that
Eberle does for animal charities,  Eberle
contended during the Senate Select Committee
hearings that his critics took insufficient note
of the costs of printing and postage.
Responded Senator John Kerry during the
Select Committee hearing of December 2,  1992,
“You sit here and say to us,  gee,  I only got
$100,000,  but that is really disingenuous,
because the total fee produced by this which
benefits you or your family or partners is
significantly more than that.  So you sit here
and say you only got this amount of money when in
fact the charity,  quote,  winds up with $200,000
against $1.9 million raised.  I find that
unconscionable and extraordinary.”

Waystation

Further to point #2,  the ANIMAL PEOPLE
editions of March and April 2002 quoted and
paraphrased Martine Colette as claiming that
Eberle and his companies were paid by Wildlife
Waysta-tion on a percentage basis.   Colette was
attempting to explain why the Waystation filings
of IRS Form 990 for the 2000 and 2001 fiscal
years failed to identify fees paid to
professional fundraisers,  as Line 30 of IRS Form
990 requires.
ANIMAL PEOPLE made no judgement one way or the
other as to the veracity of Colette’s claim,  but
made follow-up inquiries to try to find out
whether any part of it stood up.
In April 2002 ANIMAL PEOPLE published a series of
self-contradictory denials received from Eberle
after the March 2002 edition went to press.  His
math repeatedly conflicted with his statements.
ANIMAL PEOPLE noted that no matter how Eberle was
paid,  payments of professional fundraising fees
are supposed to be acknowledged on Form 990.
Both Colette and Eberle claimed in March
2002 that their contracts were confidential. In
early 2003 ANIMAL PEOPLE learned that the
contracts are available from the California
Office of the Attorney General.  The contracts
affirm that  Eberle and his companies are paid by
the Waystation on a flat fee basis.

The lion’s share

Point #3 refers with specificity only to
the use of the phrase “the lion’s share” in an
e-mail of January 23,  2002 from ANIMAL PEOPLE
editor Merritt Clifton to Dawn L. Simas of Wild
About Cats.
“I don’t respond to anything,”  Clifton
wrote,  referring to reader inquires about an
Eberle test mailing for Wild About Cats,  “until
I can assure people who ask me about an
organization that I know exactly where all the
money will be going,  and that the lion’s share
of it will be going into programs,  not further
fundraising.”
The e-mail to Simas is the only use of
the term “the lion’s share” with reference to
Bruce Eberle and FRS discovered in repeated
electronic searches of the ANIMAL PEOPLE archives
and e-mail files previous to the distribution of
the June 2003 ANIMAL PEOPLE appeal letter and
editorial.  These also use the phrase “the lion’s
share,”  but in a more explicitly defined
context,  and were printed and mailed after the
settlement agreement was reached.
Point #3 may also refer to:
a)  An imprecise reference to high-volume
direct mailing firms in a March 2001 promotional
wrapper,  which did not actually mention either
Eberle or any of his companies,  and did not go
to ANIMAL PEOPLE subscribers;  and
b)  Two sentences in the May 2002 ANIMAL
PEOPLE editorial,  which might have been misread
in an ambiguous manner if removed from the
context supplied by the preceding eight
paragraphs.   The possible ambiguity,  avoided in
all other coverage,  has been corrected in the
ANIMAL PEOPLE electronic archives
Eberle objected that the e-mail to Simas
and the March 2001 and May 2002 references might
have caused readers to believe that his profit
margin consists of “the lion’s share” of direct
mail returns,  rather than that his modus
operandi often results in charities spending far
more money on direct mailing than on their stated
charitable purposes.
In that regard,  the percentage of funds
raised that are retained as profit by
professional fundraisers has never been an issue
of primary concern to ANIMAL PEOPLE,  and indeed
has been mentioned only once in any article.
That reference was in a direct quote from Eberle
about himself.
The issue of concern to ANIMAL PEOPLE,
as explained each year in the preface to our
annual “Who gets the money?” feature and Watchdog
Report on Animal Protection Charities,  is the
balance of program spending against “overhead”
expenditure,  defined as fund-raising plus
administrative expense.
The Wise Giving Alliance standard,  used
by ANIMAL PEOPLE,  is that overhead should not
exceed 35%.  The average overhead amount among
animal charities whose IRS Form 990 filings
ANIMAL PEOPLE has evaluated during the past four
years was 28%.
Recent IRS Form 990 filings are not
available for several ani mal charities
represented by Eberle,  and the filings from
several others are incomplete.  Wildlife
Waystation and possibly some others also had
fundraising operations other than those of Eberle.
Among nine recent IRS Form 990 filings by
three animal charities whose filings are
reasonably complete,  however,  whose only known
professional fundraiser was Eberle,  the average
overhead expenditure came to 70%,  and
fundraising alone came to 64%,  as detailed in
Table #1,  on page 16.
What this means,  in effect,  is that if
you sent money to those groups in those years,
you got less than half as much benefit for the
animals and more than twice as many fundraising
appeals per penny spent on animals as when you
supported the overwhelming majority of other
animal charities.

Ethics

The first sentence of the “Correction &
Statement of Regret” may be the most important:
“Via e-mails,  telephone calls,  articles and our
web site the impression may have been created
that Bruce Eberle and his company,  Fund Raising
Strategies (FRS) operate with less than
integrity.”
“Integrity” and “less than integrity” are
terms which,  like beauty,  exist in the eyes of
the beholder,  and are accordingly subject to
interpretation.
Eberle and Fund Raising Strategies claim
to adhere to various principles and standards.
Yet Eberle flunks most of the ethical
standards considered reasonable and necessary by
ANIMAL PEOPLE,  outlined in many articles and
editorials since October 1992,  pulled together
and enumerated in the May 2003 editorial “What is
an ethical charity?”
After outlining ten standards for the
ethical management of animal charities,  ANIMAL
PEOPLE explained that an ethical fundraiser for
an animal protection charity is one who endeavors
to help the client charity to meet all ten,  and
outlined another ten standards specifically
applicable to hired fundraisers.
The majority of animal charities
represented by Eberle whose IRS Form 990 filings
are available flunk standard #1, that they should
commit the overwhelming volume of resources
raised to animal protection work other than
fundraising,  administration,  and the
maintenance of reserve funds.
Many flunk standard #2,   calling for
filling out IRS Form 990 fully and accurately,
and filing it in a timely manner.
Most appear to flunk standard #5a,  since
high-volume,  low-yield direct mailing tends to
increase the fundraising costs as opposed to
program expenditures of the animal protection
sector as a whole;  flunk standard #8, that
animal charities should strive to promptly
rectify any failures to meet the standards;  and
flunk standard #10, that an ethical
animal-related charity,  if it employs an outside
fundraiser,  should hire only fundraisers with no
conflicts of interest,  such as simultaneously
representing organizations or political
candidates with goals opposed to those of the
charity.
Eberle raised funds for former U.S.
Senator Jesse Helms in at least three election
campaigns –whose 2002 amendment to the Animal
Welfare Act excluded from protection more than
90% of the animals used in U.S. labs.  The Bruce
W. Eberle & Associates web page includes an
endorsement from the Mountain States Legal
Foundation, noted for opposition to the
Endangered Species Act.  Helms and the Mountain
States Legal Foundation appear to represent
perspectives typical of political candidates and
organizations whom Eberle promotes.
Several animal charities represented by
Eberle have flunked various of the other
enumerated standards,  including standard #3,
that animal care charities should not only meet
but go beyond meeting the minimal animal care
standards enforced by government agencies,  and
should endeavor to meet or exceed the “best
practice” recommendations of the major
supervisory and/or accreditation organizations.

Fundraising

ANIMAL PEOPLE believes it is inherently
unethical for a fundraiser to undertake
telemarketing,  direct mailing,  or any other
kind of activity at a level or in a manner which
results in combined fundraising and
administrative cost exceeding 35% of the total
expenditures of the charity during the fiscal or
calendar year.
Of all the animal charities represented by Eberle
for which adequate data is available to
ascertain,  only Wildlife Waystation appears to
meet this standard.
ANIMAL PEOPLE be-lieves it is inherently
unethical for a fundraiser to make claims which
are not factually substantiated,  and that
ignorance of misrepresentations by a client
charity are no excuse.
For example,  according to information ANIMAL
PEOPLE obtained in discovery,  Eberle prepared an
appeal for Great Cats In Crisis on purported
behalf of Marjan,  the deceased Kabul Zoo lion,
which was mailed 10 days after Marjan died,  and
a week after his death was extensively reported
by news media.
Great Cats In Crisis was not a part of the
official Kabul Zoo relief effort coordinated by
North Carolina Zoo director Davy Jones,  with the
cooperation of the Ameri-can Zoo Association,
European Zoo Association,  the World Society for
the Protection of Animals,  the Brooke Fund for
Animals,  and the Mayhew Animal Home.
ANIMAL PEOPLE believes it is inherently
unethical for a fundraiser to use lawsuits,  or
the threat of lawsuits,  to try to silence
criticism or to try to compel a charity to adhere
to a fundraising contract which the charity has
determined is disadvantageous.  ANIMAL PEOPLE
first encountered this issue in reference to
Eberle two years before he sued us,  when in
August 2000 Cedarhill Animal Sanctuary founder
Kay McElroy tried to end her contract with Fund
Raising Strategies and was threatened,  she said,
with legal action.
ANIMAL PEOPLE believes that if a charity
finds that it erred in signing a contract which
is so disadvantageous that the activities
undertaken in the name of the charity are not
chiefly benefiting the charitable work,   the
charity should be allowed to break or amend that
contract without further allocation or diversion
of resources away from the charitable work that
it was incorporated to do.  An ethical fundraiser
should accordingly discourage client charities
from incurring debts to the fundraiser so large
as to require additional fundraising activity
after the initial contracted activity.
ANIMAL PEOPLE believes that fundraisers
for charities should view themselves as operating
as ex-officio officers of their client charities,
under mandate to represent the best interests of
the client charities,  and under public scrutiny,
for the public benefit,  which makes them
therefore public figures subject to the same
kinds of observation,  criticism,  commentary,
and satire as elected officials,  candidates for
public office,  and celebrities.

Terms

Of note in the Settlement Agreement,
which ANIMAL PEOPLE insisted be not confidential
and which ANIMAL PEOPLE will distribute to
interested persons on request,  is that the terms
to which ANIMAL PEOPLE has agreed are for
settlement purposes only.
ANIMAL PEOPLE has agreed to to “cease and
desist” from “tortuous interference with the
existing and/or prospective business
relationships with existing,  future,  and/or
prospective clients of Bruce W. Eberle,  Fund
Raising Strategies,  Inc.,  and Omega List
Company,”  and/or “other persons and/or
organizations that may provide services,
including list rentals,  to prospective,  future
and/or existing clients.”
ANIMAL PEOPLE has also agreed to not “defame or
cause others to defame” Eberle and his companies.
The agreement,  however,  does not
constitute an admission that ANIMAL PEOPLE ever
committed “tortuous interference” or “defamation”
against Eberle and his companies.  It merely
affirms that ANIMAL PEOPLE will continue to
observe the same laws governing the conduct of
news media that we have observed throughout our
coverage of the activities and background of
Eberle,  his companies,  and his clients,  asking
relevant questions of sources,  and answering
questions for readers and other animal charity
donors who contact ANIMAL PEOPLE for information.
All of the ANIMAL PEOPLE articles
pertaining to Eberle that were ever at
<www.animalpeoplenews.org>  are still there,  as
is the link provided to the Final Report of the
U.S. Senate Select Committee on POW-MIA Affairs.
Exercising the financial advantage coming
from distributing more than 40 million direct
mail pieces per year,  Eberle may have spent
between a quarter and a half a million dollars to
obtain publication of corrections and
clarifications that could have been published
just for the asking,  if the points at issue had
ever been clearly identified in routine
correspondence.

John Kerry

Indeed,  the errors concerning the basis
of the Eberle contract with Wildlife Waystation
and the bogus MIA/POW photograph would never have
been made if Eberle and Colette had given clear
and accurate explanations.
On July 24,  2000,  for example,  Eberle
e-mailed to ANIMAL PEOPLE,  “A few years back we
raised funds for a POW group.  However, after a
number of years we began to doubt their ability
to fulfill on their commitment to their donors.
What did we do?  We terminated our relationship,
and that was several years before this same
client engaged in activities that eventually came
before a special committee of Congress.”
In deposing ANIMAL PEOPLE editor Merritt
Clifton,  the counsel for Eberle argued that this
statement separated Eberle from the use of the
bogus photo by his former client Jack Bailey.
On December 2,  1992,  however,  Senator
John Kerry made plain directly to Eberle during
the Select Committee on POW-MIA Affairs hearings
that the activities under investigation included
“a letter that goes out for six years saying,
P.S.,  some of our captive Americans are in
failing health.  Now I guess they knew that in
1986,  1987,  1988,  1989,  1990,  1991,  1992,
same letter.  P.S.,  they are in failing health.”
Eberle represented Bailey and Operation
Rescue from 1983 to 1989.  The Senate Select
Committee on POW-MIA Affairs was concerned about
the whole history of the organization–and that
was not the first time a Congressional committee
looked into it, summarized Scott Harris of the
Los Angeles Times in August 1991.
“Bailey was cited frequently in a
November 1987 report by Army General James W.
Shufelt,  then head of the Defense Intelli-gence
Agency,  on dubious fundraising by activists
involved in the POW-MIA issue,”  Harris explained.
“The report was submitted to U.S. Rep.
Stephen Solarz (D-N.Y.),  chairman of the House
Subcommittee on Asian and Pacific Affairs,
during hearings on the POW-MIA issue.  A
recurring theme, Shufelt said in the report,  was
emotion-laden,  unsubstantiated claims that
searchers were ‘on the verge of rescuing (a POW)
and if the recipient does not send money
promptly, American servicemen will die.’
Provably false claims were rare.  But one 1987
appeal from Bailey was an exception.  In it,  the
charity claimed credit for recovering the remains
of two American helicopter crewmen.  ‘Now,  at
least, they’ve returned to their families,’  the
letter claimed.
“It wasn’t true. Pentagon records show
that a later forensic analysis of bones Bailey
claimed to be the remains of two American
helicopter crewmen were in fact the partial
skeleton of one person,  an Asian.  There were no
Asian-Americans aboard the helicopter in question
and,  as one authority put it, ‘no way’ the
remains were those of a missing American.”
Dieter Dengler
“Bailey alienated fellow activists in
other ways as well,”  Harris continued.  “One
example was his 1988 encounter with Dieter
Dengler, the only American POW to escape from
Laos.  Dengler met Bailey in summer 1988,  after
the POW hunter claimed that Dengler’s old
cellmate,  Eugene DeBruin,  was alive.  Dengler
traveled to Thailand to join Bailey in a hunt for
more clues.  Before departing,  Dengler agreed to
write a fund-raising letter.
“But after a few days in Thailand and
some harsh words with Bailey,  Dengler headed
home.  He sent Bailey a letter by certified mail
asking that the fund-raising appeal be scrappedŠA
few months later, the fund-raising letter went
out anyway.  It featured Dengler’s first-person
narrative as well as a picture of him at his
rescue-bearded,  bony,  weighing less than 90
pounds.  ‘Yes, there have been and will be
disappointments caused by dishonest people,’ the
letter concluded, ‘but it is vital that we
continue NOW.’
“There was one editing change,”  Harris
noted.  “Instead of using Dengler’s name, the
letter was signed ‘an ex-POW.'”
The bogus photos showing an alleged POW on the
premises of the wildlife dealer in Thailand were
taken in 1989,  according to the Senate Select
Committee Final Report.  They were just one small
part of Bailey’s “activities that eventually came
before a special committee of Congress,”  as
Eberle put it, –and most of the rest came while
Eberle was fundraising for Bailey.