When 'free' merchandise isn't
Lawsuit targets publisher's
'negative option' policy
By CANDACE HECKMAN
SEATTLE POST-INTELLIGENCER REPORTER
Tuesday, January 31, 2006
If her 3-year-old daughter didn't
love Barbie so much, Carly
Alcombrack would have just tossed
aside a postcard that promised a
free Barbie book and backpack from
Scholastic at Home.
With husband John Hart in the
background, Carly Alcombrack plays
with her daughter, Jahdai, in their
Bellevue home. Jahdai's love for
Barbie started the trouble.
A year later, she wishes she had
chucked it, anyway.
After being bombarded by unwanted
book shipments and invoices ordering
her to pay for them, Alcombrack now
wonders if the world's largest
publisher and distributor of
children's books got so big by
pushing its products on consumers
who didn't want or ask for them.
She and her husband, John Hart, are
suing Scholastic in federal court,
claiming that the company violates
Washington's unsolicited goods and
consumer-protection laws, as well as
similar laws in more than a dozen
Believing that thousands of other
consumers have had similarly
frustrating experiences, the couple
are seeking class-action status for
the lawsuit, which was filed Monday
in U.S. District Court in Seattle.
Scholastic spokeswoman Kyle Good
said that neither she nor the
company's legal team knew about the
lawsuit and could not comment. Good
also declined to comment on
Scholastic's home book club or the
marketing practices of that part of
Free is free, or so Alcombrack
thought about Scholastic's offer at
the time. So, she filled out the
card that fell into her lap from a
Barbie book she and her daughter
were reading at a doctor's office.
But after receiving the book and
backpack, Alcombrack started getting
more book shipments. She wrote a big
"Return to Sender" on the packages
with a black marker.
She spoke -- and argued --
constantly on the phone with
Scholastic's customer service
representatives after the company
began billing her for the packages
She told them to stop calling. They
She told them to stop sending books.
Instead, they started sending
encyclopedias addressed to her
"I just assumed Scholastic was a
company we could trust," she said.
After the first couple of months,
Alcombrack mulled this dilemma: If
she paid for the books, Scholastic
and other companies likely would
bombard her Bellevue mailbox with
more books, as well as additional
offers for other products. If she
continued to refuse delivery and
refuse to pay the bills, the company
might ruin her credit.
She elected the latter while
consulting a lawyer and family
"She wasn't the lone ranger among
the moms," said Simeon Osborn,
Alcombrack's lawyer, who is also her
son's football coach. "They were
there on the sideline. They were all
talking about 'the same thing
happened to me.'
"They said, 'Hey, Sim, what do you
think?' " Osborn explained. His
response was, " 'Well, I can't tell
you offhand, but I know that's got
to be wrong.' "
At that point, Scholastic had been
going after Alcombrack and Hart for
most of a year and had just
threatened to send the account,
addressed with their tot's name, for
"I felt like my daughter's credit
would be in jeopardy at 3 years
old," Alcombrack said, adding that
she has felt a kind of "Mommy's
guilt" over the situation.
"We all grew up with Scholastic.
They are really thought of as
educational," said Susan Linn, a
professor at Harvard Medical School
and co-founder of the Campaign for a
But, "they are a company that is
living off a reputation they no
longer deserve of being good for
Linn said that most parents and
teachers do not realize that
Scholastic has changed. In the
1990s, the company began getting
more aggressive in its marketing and
commercial in its offerings.
Scholastic's offerings now include
videos, CDs and toys, not only
through direct home marketing, but
at its school-based book fairs.
Scholastic is just one on a long
list of companies that are using
children to manipulate parents into
buying consumer goods, Linn said.
Take the Barbie & Friends Book Club.
It offers books, but it also
promotes toys -- and a product that
has not been without controversy
among child psychologists.
Alcombrack said that because her
daughter loves Barbie so much, it
was difficult for her and her
husband to say "no." It has been
equally difficult to tell their
other children that they will not
order books from the Scholastic
order form the children take home
from school once a month.
The couple end up taking their six
children, ages 1 to 11, to the
bookstore, instead. And they are not
the first to complain about or
boycott the company over its
In 2004, Scholastic agreed to a
monetary penalty with the Missouri
Attorney General's Office after an
investigation found the company
sending unsolicited goods and
billing consumers for them.
Scholastic's home book services are
based in Missouri.
Then last June, Scholastic paid the
Federal Trade Commission a $710,000
civil penalty for confusing
consumers targeted by telephone and
direct marketing campaigns for its
"negative option" programs, which
require consumers to tell the
company when they do not want a
Scholastic's Good said she would
have to find out how the company has
responded to the government action
and would not comment Monday on the
company's book-club practices.
Scholastic and its subsidiaries have
also generated hundreds of
complaints in the past three years
to the Better Business Bureau,
through various regional BBB
offices, which provide their
statistical reports online.
Alcombrack did not keep a copy or a
duplicate of the card she filled
out, but she said that she read the
offer carefully, and it did not
obligate her to buy anything for
receiving the book and backpack.
A similar offer on Scholastic's Web
site reads, "Join now to receive
your child's three Free Barbie &
Friends Books and FREE mini
Backpack. Plus you'll receive a
trial book to preview FREE for seven
"If not 100% satisfied, simply
return your trial book at our
expense within seven days and owe
Scholastic nothing. The three FREE
books and FREE mini backpack are
yours to keep no matter what you
The offer goes on to explain that
keeping the trial book would cost
$3.99 and the consumer would be
obligated to accept at least eight
books for $4.99 a book, after which
the consumer could cancel the
Although that kind of "negative
option" marketing is not illegal per
se, "Those who engage in it bear a
pretty substantial burden of proving
consumers were duly informed," said
David Huey, a senior assistant state
attorney general in Washington who
specializes in consumer protection
law. "Negative option has (for) a
long time been the bane of consumer