Two major publishers are being sued by consumers for allegedly mailing unsolicited books to them accompanied by invoices.
Allen Aron of Chicago, filed a class action suit against American Express Publishing Corp. on Feb. 20, alleging that the firm sent him a copy of Food & Wine Magazine’s 2003 Cookbook without his consent.
A similar action was filed earlier in the month by Michael Karnuth against Rodale Inc., claiming that Rodale sent him two unsolicited books and placed him in collection when he failed to pay for one of them.
The plaintiffs, both of whom are represented by the Chicago law firm of Robert J. Stein III, seek declarations that they can keep the books as gifts. Both parties cite 30 U.S.C., Section 39, which states that unordered merchandise constitutes a gift that does not have to be paid for or returned.
However, a Rodale spokesperson said that Karnuth’s complaint is "without merit. Rodale has compiled with all federal statutes, and our policy is so send merchandise only to customers who have ordered our products."
American Express Publishing spokespersons had no comment at deadline.
In the American Express Publishing case, Aron alleges that he received the book in February, along with a letter inviting him to preview the book.
"If you keep it, your credit card account will be billed $26.95 plus $4.95 shipping and handling (and sales tax where applicable)," the letter says, according to the complaint. "If you do not want to preview the book, simply return the advance notice card within 14 days."
Aron contends that American Express Publishing "wrongly forced an invalid and unconscionable purported ‘contract’" on him.
He also states that since the salutation said "Dear Cardmember," that American Express Publishing must have gotten his name and card number from its parent company.
The letter that arrived with the book promised that if Aron responded, He would "then receive advance announcements for future Food & Wine selections," the complaint stated.
The complaint continues that Aron would have had to repackage the book, drive it to a post office and pay for return shipping. The letter gave him 45 days to return the volume.
"We’re hoping that American Express Publishing will say, ‘you’re right," said attorney William Bogot, an affiliate of the Stein law firm, who worked on the case.
In the Rodale complaint, Karnuth alleges that he was sent the first book in 2001. It came with an invoice for $27.49 and instructions to return the volume within 21 days if he did not want to keep it.
Karnuth, who had subscribed to the Rodale magazine Men’s Health in 2000, eventually paid the invoice. In December 2001, nine months after his Men’s Health subscription had expired, he was sent the Report: 2002: A Man’s Guide to Women," with an invoice for $29.97.
This time he didn’t pay, and the invoice was placed into collections, the complaint alleges.
While not familiar with the cases, circulation consultant Gordon Grossman said that magazines do not send unsolicited merchandise. "I have never heard of anybody doing it—period," he said.
His understanding is that when merchandise is unsolicited, "you don’t have to pay," he said.
The complaints also seek compensatory damages and restitution, and court orders requiring the defendants to "disgorge all revenues" resulting from the promotions.
The American Express Publishing case is on file with the U.S. District Court for the Northern district of Illinois, Eastern division. The Rodale complaint is on file with the U.S. District Court for the Eastern District of Pennsylvania.
