A new class action lawsuit accuses Shutterfly Lifetouch of attempting to collect payment for unsolicited school photo packages.
Plaintiffs Don Cullen and Ellen Ross say the company has a Family Approval Program that sends unsolicited Lifetouch photos home with the option for families to purchase them.
According to the class action lawsuit, school children’s parents are told to review the Lifetouch photos and pay for the ones they want and return any unwanted photos, which presumably will be destroyed.
However, Lifetouch consistently requested “payment in kind,” the plaintiffs say, violating California’s Consumer Legal Remedies Act and Unfair Competition Law, false advertising and common law, as well as the federal Postal Reorganization Act of 1970.
Shutterfly’s headquarters is in Redwood City, California, according to the class action lawsuit. The company acquired Lifetouch in 2018.
Lifetouch picture day is a familiar school experience for many U.S. families.
The company, which has been taking school photos for more than 80 years, provides school picture services in the fall and spring, the class action lawsuit says.
For the fall Lifetouch picture day, parents select the package they want before any photos are taken, the plaintiffs say. They also have the option of telling their child’s teacher if they don’t want to have their child’s portrait taken.
The spring Lifetouch picture day is where the Family Approval Program comes into play, according to the plaintiffs. Parents are not given the option to opt out of receiving photos or even having their child’s picture taken.
According to the Lifetouch class action lawsuit, parents are often “blind-sided” when they receive the photos and feel pressured to pay for them “or return them to the school to an unknown fate.”
The plaintiffs maintain that despite the Lifetouch photos’ unsolicited nature, Lifetouch says any photos not returned must be paid for and send payment reminders to parents.
Cullen says his child, who attends an Austin, Texas, elementary school, started being sent home with unsolicited Lifetouch photos in April 2017.
Cullen claims he never authorized the photos or requested copies, and says he would not have returned any of the photo packages had Lifetouch not misrepresented his obligation to pay for or return the unsolicited photos.
Ross, of Modesto, California, says photos were sent home with her four children beginning around spring 2001.
Like Cullen, Ross says she never authorized Lifetouch to take photos of her children, nor did she request copies of those photos.
However, instead of returning the photos, Ross says she consistently purchased the Family Approval Program packages for all four children until about 2019.
Ross claims she would not have paid any of the Lifetouch photos had the company not misrepresented her obligations.
The plaintiffs claim Lifetouch knows its practices are unlawful and has “warned investors that such practices may open the company to liability.”
In a 2019 Securities and Exchange Commission (SEC) filing, Shutterfly Lifetouch warned its investors about the Family Approval Program: “Lifetouch has been and, in the future, may be subject to claims from individuals that these products qualify as ‘gifts’ and/or that the program does not comply with legislation pertaining to ‘unsolicited goods.’ While we do not believe that such legislation is applicable to school photography, if Lifetouch becomes subject to such claims and is required or elect to curtail the use of the Family Approval model, its business and revenue may be negatively impacted. . . . [W]e have been and, in the future, may be subject to claims from individuals or governmental regulators that our offers are misleading or do not comply with applicable legislation.”
The plaintiffs say Lifetouch has become unjustly enriched through its practice of sending unsolicited photo packages to parents and expecting and receiving payment.
“Retention of those moneys under these circumstances is unjust and inequitable because Defendants are retaining their customers’ photo package fees, despite having no authority to request fees for unsolicited goods,” the class action lawsuit says.
The Proposed Class includes “all natural persons within the United States” who received unsolicited Family Approval Program photo packages from Lifetouch between Aug. 25, 2016, and the date of preliminary approval of the class action.
The complaint also seeks to certify a Purchaser Subclass made up of all Class Members who purchased Family Approval Program Lifetouch photos, as well as two California Subclasses consisting of Class Members and Purchaser Subclass Members living in California, respectively.
The plaintiffs are asking the Court to stop the defendants from their alleged deceptive business practices; compensatory, punitive and statutory damages in an amount to be determined at trial; restitution; pre- and post-judgment interest on all amounts; attorneys’ fees and court costs; and any other relief the Court deems proper.
They also demand a jury trial.
Have you received unsolicited school photo packages from Lifetouch? Leave a comment below.
The plaintiffs are represented by Seth A. Safier, Marie McCrary and Anthony Patek of Gutride Safier LLP.
The Lifetouch Picture Day Class Action Lawsuit is Don Cullen, et al. v. Shutterfly Lifetouch LLC, et al., Case No. 5:20-cv-06040, in the U.S. District Court for the Northern District of California, San Jose.
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