Prosecutor Considered a Pioneer : Elkins: Going to Court on Consumers’ Behalf

For the restaurant-goers of California, it was a great triumph. “It was called ‘truth in eating’--something like that,” said Herschel Elkins, grinning as he began the story.

“What we discovered was . . . that restaurants were advertising white fish. So we asked them, ‘Do you know what kind of fish this is?’ Well, it turned out to be cod or butterfish or something,” said Elkins, chief of the consumer law section of the state attorney general’s office.

“And we said, ‘That’s not white fish.’ They said, ‘Well, it’s white.’ ”

Many restaurants had such problems. “Imported cheeses that weren’t imported. Fresh orange juice that wasn’t fresh. Fresh foods that were really frozen. Veal which is really pork. . . .

“We started suing everybody. And pretty soon, the restaurants became rather embarrassed,” he said. And so, the industry “had a big campaign for truth in menus. ‘Truth in menus!’ That’s what they called it!”

Elkins’ band of consumer law prosecutors hope that what happened in the restaurant industry seven years ago will be repeated today in the auto dealership business. More than 100 dealerships statewide have been warned, paid fines or, in a few cases, been sued because of allegedly false and misleading advertising.

Car dealers complain that the attorney general is both nit-picking and using heavy-handed tactics. “They’re sitting there with so much power, and we’re at their mercy,” said one dealer who requested anonymity. He averted a lawsuit by paying a fine. “I wanted to fight it, but my attorney said I was crazy, that it would cost $250,000. . . . Even if you win, you’d lose.”

As auto dealers are finding out the hard way, Elkins and his staff are a force to be reckoned with. Although he is not as well known to the general public as a consumerist icon like Ralph Nader or a consumerist TV personality like David Horowitz of “Fight Back!” fame, Elkins is recognized nationally as one of the premier prosecutors in his field.

In 30 years with the state attorney general’s office, Elkins, 56, has developed the reputation of an activist rather than a bureaucrat. Many credit him as the primary architect of consumer law in California, and he is often asked for advice by the Federal Trade Commission and authorities in other states. He has marshaled a staff of about a dozen attorneys--mostly veteran prosecutors--who have taken on hundreds of cases and, according to Elkins, has not lost one yet.

The doublespeak advertising of some auto dealers is only one of their current targets. More loathsome, Elkins said, are the scams in which people are bilked out of thousands of dollars or unwittingly put up their homes as collateral for new carpeting they cannot afford.

Elkins, who supervises his unit from the attorney general’s Wilshire Boulevard office, tends to view consumer fraud more in general categories than in specific cases. He recently compiled a list of 36 distinct categories of fraud that his staff is pursuing--a mixed bag of investment scams, bogus vacation deals, real estate fraud and pyramid schemes.

“If there were more Herschels, we wouldn’t have as much consumer fraud go on as we do,” said Ann Haskins, associate director of Public Counsel, a nonprofit legal services group funded by the Los Angeles County and Beverly Hills Bar associations. The group last year honored Elkins for his “life work,” as Haskins put it.

“Herschel’s name was mentioned often in almost a tone of reverence” at a recent national convention of attorneys general, a colleague said.

Enjoys Reputation

Elkins clearly enjoys his reputation. He jokes about being looked upon as “a grandfather” of consumer prosecutors. As for the Public Counsel honors, “I’ve always regarded that as being for people who are now getting a bit senile. . . .”

Elkins has achieved minor celebrity status. He has been on numerous TV and radio programs and is quoted often in news stories.

“You can ask him the most obtuse question about a scam or fraud, and he’ll have an answer,” said Horowitz of “Fight Back!” “Herschel always has a good quote. If you ever want a 15-second bite on whatever it is, Herschel can give you 15 seconds. . . . He’s not only informative; he’s entertaining.”

Colleagues say Elkins combines energy and volubility with a potent intellect and encyclopedic knowledge of consumer law. Upon receiving his honor from Public Counsel, he told the crowd, “I am speechless--which for me is about five minutes.”

Elkins entered UCLA Law School after a stint in the Army. “During the Korean War, I was in Germany, which was a good place to be,” he said. He is married and the father of three grown sons. The oldest son is an attorney in Jerusalem, the second a high school teacher and the youngest will soon graduate from UCLA.

When Elkins first joined the attorney general’s office 30 years ago, he expected to stay about two years, he said. He was a trial deputy at first, handling a wide variety of law, including one death penalty case, and he gradually developed expertise in consumer law. When then-Atty. Gen. Thomas Lynch decided to create a consumer law section in 1967, Elkins was tabbed as its chief.

‘Here Was an Opportunity’

“Here was an opportunity to do some things that hadn’t really been done before,” Elkins recalled. “To try to see if the marketplace would be improved.

“And it just got more and more interesting, as the years went by. And it became more and more fun, and exasperating sometimes, and lo and behold all of a sudden my two years stretched to 30.”

He was a witness to and a participant in the consumer movement. In the late 1950s and early 1960s, Elkins said, consumer law often was not taken seriously.

“A number of years ago if actions were brought at all, they were criminal . . . and you’d go before a judge, who is hearing a series of cases that day--a murder, a robbery, a rape.”

When the judge got to the consumer case, “he didn’t regard that as serious a matter. . . . You’d get $50 fines; you’d get probation.”

But new laws helped make public-interest civil suits a valuable tool in fighting consumer fraud. Elkins crusaded among county and city prosecutors, encouraging them to file more civil suits. The combination of injunctions, heavy fines and adverse publicity proved effective, he said.

Discussing his specialty, Elkins presents a world rife with fraud and chicanery. But if it seems as though battling consumer fraud--if bringing candor to automotive ads--is like trying to stop the sun from setting, Elkins disagrees.

Consumers are better off in some ways and worse off in others, he said.

Retailers, for example, “have gotten a lot better in regard to response to consumers,” he said. “And a lot of the real bad practices have stopped.

“I had a discussion with an attorney for one of the largest department stores in the world, and we took a look at a sales manual they had, oh, about 25 years ago. They would have been in jail for using those sales tactics today.”

‘More and More Absurd’

Even so, the practice of bogus “comparative prices” by retailers is more common than ever. “Those things that are permanently on sale for 50% off--those advertisements have gotten more and more absurd.”

Among the biggest changes over the last two decades, Elkins said, are the proliferation of investment scams, along with fraudulent sales over the telephone and through the mail.

And now, fraud often has an international flavor. “There are companies that go from country to country creating new fraud. It used to be you could find defendants in California. Now they can be anywhere in the world.”

As for automotive sales, “it certainly hasn’t gotten any better.”

On one recent day, Elkins scanned the automotive ads of a recent edition of a newspaper to prove his point. After maybe 20 seconds, he poked the newspaper with a ballpoint pen and said, “Here’s one.”

“YES!” shouted an advertisement for a car dealer who doesn’t need any more publicity. “5.9% . . . Yes! New ’86 Electra Park Ave. . . . 4 Dr. Loaded!!!”

Now, read the fine print, Elkins said. Those tiny, ambiguous words mean that 5.9% financing is available only with the Buick Le Sabre, not the Electra. And that, he said, makes it false advertising.

A minor fib to some, perhaps, but not Elkins.

“The law says it (the advertisement) has to be clear and conspicuous. That is not clear and conspicuous,” he said.

Elkins continued browsing and in a manner of minutes pointed out five more ads that he considered dubious.

Auto dealers are beginning to respond to the campaign. The impact of the first suit, filed against Don Kott Ford in Carson, is telling.

Deceptive Claims Alleged

The suit accused the dealership of making five specific deceptive claims in its ads. For example, Don Kott Ford allegedly advertised financing rates that were deceptively low because the prices of cars sold on credit were substantially higher than those of cars sold for cash. The price difference represents a hidden and illegal finance charge, according to Michael Botwin, the deputy attorney general spearheading the campaign.

The Ford dealership and the attorney general’s office are exchanging documents in preparation for a possible court battle. Jerome L. Bleiweis, attorney for the dealership, contends that the lawsuit is without merit and says the advertising reflects common techniques in auto sales.

“We don’t think we in any way provoked that action,” said Sam Treynor, secretary-treasurer of the firm. However, he added, the dealership has since “been making every effort to make (the ads) as innocuous as possible. . . . We’ve backed off into generic advertising.”

But another car lot owner said that when he reads the auto ads, “I see dealers doing exactly what they hit us over the head for. . . . There isn’t a dealer in the country that the attorney general could investigate and not turn up something.”

Botwin also contacted The Times and provided guidelines to help detect dubious sales pitches, according to Boyd Savage, automotive advertising sales manager. “We try to keep everything as straight as we can,” Savage said.

Sued for $600,000

It is not unusual for businesses charged with wrongdoing to accuse Elkins’ operation of being overzealous. That was also the case with Al Hechinger, whose Los Angeles photo-album firm was sued by the state attorney general for $600,000 for allegedly reneging on promises to prepare church and school reunion directories.

Hechinger maintained that delivery had been delayed because he had been defrauded by previous owners of the business--and had won another court case on that point. But the attorney general’s lawsuit succeeded in putting him out of business while he has tried to fight the suit.

Elkins recalled the case. “Our position is that he continued the operation and either knew or should have known about the financial situation. . . . We have complaints from more than 200 churches.”

The record shows that anyone who tangles with consumer prosecutors faces a difficult test. Elkins can recall only one consumer case that the attorney general’s office lost. It was a so-called “slack-fill” case. The question was, how much cold cream was really inside those cold cream jars?

But that case took place shortly before the consumer section was created with Elkins as its chief. Looking back, he thinks the state would win the same case today.

“We don’t lose at all. I mean, we have never lost a case,” he said. “Relatively few cases go to trial. Most of the cases are settled with a stipulated judgment. . . . We’ve lost some at trial, but had it reversed on appeal.”

But then, that may sound more impressive than it is. After all, the prosecutor said, there is plenty of fraud from which to choose.

“We don’t bring cases frivolously,” he said, grinning. “We’ve always had sufficient evidence to go to court.”