TortDeform: The Civil Justice Defense Blog

Kia Franklin

Don’t Know How I Missed This…

This is one of those cases where you can have no reaction to the outcome beyond, “Are you kidding me?” I don’t know how I missed it, and I know it’s been months, but I had to share Alliance for Justice’s analysis of Wisniewski v. Rodale, Inc (3rd Cir. 2007), anyway. Enjoy (or lament). Go to Alliance for Justice’s main page for more info.

Posted at 4:38 PM, Mar 06, 2008 in Permalink | Comments (1) | TrackBack (0)


Comments

If you read this case, the ruling makes sense.

Wisniewski was sent some books, unsolicited, from Rodale. He kept them, paid for them, and filled out a "negative option" form -- those programs where companies keep sending you stuff, and charging you, until you opt-out. (Remember those "9 CD's for 1 cent!" things?)

Anyhow, Mr. Wisniewski wanted to file a class action against Rodale. Problem was that he obviously wasn't a victim of fraud or breach of contract. So he used the little-known Postal Reorganization Act ("PSA").

The PSA states that all unordered merchandise mailed to a person can be kept by that person as a gift, unless it's conspicuously marked that the recipient will be charged for it if it's kept.

Mr. Wisniewski thought this meant that he could pay for the item and then sue, as a class-action representative.

Problem is that it's pretty clear that Congress, in passing the PSA, didn't intend to create a cause of action for people who bought unsolicited merchandise, which was the question before the court. For one, Congress put enforcement authority in the FTC. For another, the statute doesn't mention anything close to a private right of action. Third, it is implict within the PSA that the real remedy is the fact that unsolicited merchandise may be treated as a gift unless it's conspicuously marked. You get free stuff if a company tries to trick you.

Of course, those silly people over at the website you linked turned this into the headline "Didn't Pay For It? Still Have To Buy It!"

I guess they didn't read the case either.

Posted by: Lawyer | March 6, 2008 11:01 PM


Post a comment

Verification: